The High Court entered summary judgment for Turvey Business Park Limited for €15,029.87 in unpaid service charges after finding that the lease’s arbitration clause did not cover disputes about the service charge certification process. The court adjourned the plaintiff’s claim for interest to a plenary hearing.
Mr Justice Hogan gave judgment on 15 April 2011 in an appeal by Leo Bentley and Susan Bentley against a Master’s decision allowing final judgment for €33,872.69. The defendants had also asked for the dispute to be referred to arbitration under the Arbitration Act 1980.
The judge held that the 1980 Act had been repealed and its saving provision did not apply because no arbitration proceedings were pending when the repeal took effect on 8 June 2010. He treated the defendants’ motion as a request under Article 8 of the Model Law on International Commercial Arbitration to stay the court case for arbitration.
That request failed because the lease excluded disputes concerning certificates from the lessor’s auditor, and the auditor had certified the service charges. The judge treated two accountants’ reports, issued in September 2009, as effective certification even though they did not use the word “certify”. He found no evidence of manifest or obvious error in the certificates. He also rejected the defendants’ contention that they needed to examine the underlying invoices line by line to assess the charges.
The claim had originally sought €48,200.92 for service charges, mainly for 2007 and 2008, plus interest. After the accountants’ reports, the estimated charges for those years were reduced from €18,790.11 to €11,438.33 and from €10,718.52 to €7,742.07 respectively. The judge considered the reductions evidence that the initial estimates had been conservative and that the accountants had sought to determine the actual charges.
After the judgment was delivered in draft, the parties agreed that the defendants should receive a €152.53 credit for an overpayment in 2006. The first defendant had also paid €4,000 in September 2009. The parties disputed whether it should be credited to 2007 or 2009 charges, so the plaintiff agreed that it would be deducted from the summary judgment amount pending the plenary hearing. Taking these figures into account, the court entered judgment for €15,029.87.