The High Court has ruled that Dunnes Stores Unlimited Company must prepare plans and use reasonable efforts to obtain any required consents for fitting out its anchor store at Point Village, Dublin. The court found that Dunnes could not avoid its contractual obligations by deciding it did not intend to trade from the store.
Mr Justice David Barniville held that the relevant agreements required Dunnes to take steps to fit out the store, while leaving it flexibility over the details of the works within contractual standards. He rejected Dunnes’ interpretation that it had no duty to carry out any works unless it chose to use and enjoy the premises.
Point Village Development Limited, which is in receivership, brought the proceedings through its joint receivers. It sought specific performance of obligations under a development agreement, as amended by later settlement agreements. Dunnes defended the claim, arguing that the definition of “Fit Out Works” made those works dependent on its intended use of the store. Its general counsel gave evidence that Dunnes had not formed an intention to trade there and was not convinced of the store’s commercial viability.
The court traced the relevant Access Date to 30 March 2016. In earlier proceedings, the High Court had found that a certificate confirming agreements for leases with tenants had met the settlement agreement’s requirements, triggering the Access Date; the Court of Appeal upheld that decision. The 26-week Fit Out Period therefore expired on 28 September 2016.
Mr Justice Barniville concluded that the obligations to submit fit-out plans and use reasonable endeavours to obtain fit-out consents were mandatory. He also found that Dunnes had not complied with its contractual obligations. However, he did not decide the full scope of the specific performance orders at this stage. Because Dunnes had not applied for or obtained a fire safety certificate, if one was required, he reserved whether to order performance of the obligations to design, carry out and complete the works and to complete them within the Fit Out Period. He said he would hear further submissions on that question before final orders.
The judge also rejected the developer’s arguments that Dunnes was barred from raising its contractual interpretation by res judicata, issue estoppel or the rule in Henderson v Henderson. He said those conclusions were subsidiary to his decision on the contract’s meaning. The matter was to be listed for mention and final orders on a convenient date in the first half of October 2021.