The High Court dismissed Patrick McCoy’s claim for specific performance of a 2001 property sale contract, finding his unexplained delay in bringing proceedings defeated the claim. The court also concluded that the proceedings constituted an abuse of process and were bound to fail.
In a judgment delivered on 28 February 2019, Ms Justice Reynolds considered an application by the second defendant, Tom Kavanagh, to strike out or dismiss the proceedings. The application argued that the claim disclosed no reasonable cause of action, was an abuse of process, and was frivolous, vexatious or bound to fail.
McCoy sought an order requiring Oriental Handcrafts Limited to complete the sale of Apartment 26, Harbourside, Newport, County Mayo. Under a contract dated 5 September 2001, he had agreed to buy the apartment for €12,697, less the agreed deposit. He also sought a declaration that he was entitled to a share in the property corresponding to the deposit paid, along with other relief.
The apartment was subject to a mortgage securing loans to Oriental Handcrafts. The bank’s loan and security interest was later acquired by Launceston Property Finance Limited, which became the registered owner of the mortgage and charge. McCoy was appointed receiver over the property in August 2016.
McCoy said he had also entered a building contract on the date of sale and spent about €14,000 on construction work. He said he remained ready and able to complete the purchase and relied on part performance. The judge noted that the replying affidavit did not include the alleged building contract or evidence of the expenditure.
The judgment records that title difficulties were known to McCoy and were resolved in early 2016. In April that year, Launceston was said to have agreed to consent to a sale if it received the net proceeds by 29 April. The sale was not completed by that deadline. McCoy argued that Launceston could not withdraw consent previously given by its predecessor and maintained that he had a lien over the property.
The court applied the test for striking out proceedings, under which the moving defendant had to establish that the claim could not succeed on the facts before the court. It held that the initial 15-year delay was wholly unexplained. The judge said McCoy could have sought to rescind the contract or serve a completion notice, and that the delay overwhelmingly defeated any merit his position might otherwise have had.
The court acceded to the application and dismissed the plaintiff’s claim. The judgment does not set out a separate order on each requested form of relief.