The High Court has rejected an argument by Point Village Development Limited and Henry A. Crosbie that a settlement agreement required Dunnes Stores to begin fitting out its Point Village store from October 2010. The court ruled on how the agreement should be read, but did not decide whether the plaintiffs are entitled to an order compelling Dunnes to carry out the fit-out.
The dispute concerns a 2010 settlement of earlier proceedings over development of the Point Village shopping centre in Dublin. Under the settlement, the store’s “Access Date” was to fall 30 days after Dunnes received a certificate referred to in clause 11(c). That clause provided for €15 million to be released from a nominated account after Dunnes’ solicitors received confirmation that binding leases or agreements for lease existed for at least seven specified ground-floor units.
The plaintiffs argued the reference to clause 11(c) was a drafting mistake and should have referred to clause 11(a), which concerned practical completion of building works, excluding Point Square. On their case, the Access Date fell 30 days after practical completion was acknowledged as achieved on 7 September 2010, triggering Dunnes’ obligation to begin its fit-out.
Dunnes denied that the Access Date had occurred. It argued that the clause meant what it said: the 30-day period followed receipt of the confirmation about the seven units. It also relied on the developer’s delay in starting works at Point Square.
Ms Justice Laffoy said the plaintiffs had not shown that the reference to clause 11(c) was clearly mistaken or that clause 11(a) was clearly the intended correction. Read alongside the development and supplemental agreements, the reference to clause 11(c) was consistent with the parties’ arrangements: release of a substantial payment depended on leasing progress, while Dunnes’ obligation to open the store depended on the seven units opening and trading. The court therefore declined to correct the clause through interpretation. Whether the agreements reflected the actual intention of either or both parties was left for another stage.
The judge separately considered Dunnes’ argument that the Point Square delay should prevent an order for specific performance. The works had not begun within 12 weeks of the July 2010 settlement and started in April 2012. Evidence at the hearing indicated they were expected to be substantially complete in November 2012 and reach practical completion by December. The judge found the delay caused Dunnes no actual prejudice and said it would not, by itself, make specific performance inequitable if the plaintiffs were ultimately found entitled to that remedy.
The parties had agreed that the court would not address rectification or damages at this stage. The judgment decided the construction issue and the Point Square alternative defence only; it did not grant specific performance or determine the remaining claims.