The High Court has dismissed both sides' claims in a dispute over the €2.365 million sale of a newly built mews at 13A Morehampton Road in Donnybrook.
Builder Colum Mackin sought an order of specific performance, which would have compelled property developer Gerard Deane to complete the purchase. Deane counterclaimed for return of his €25,000 deposit, saying he had validly rescinded the contract.
Ms Justice Finlay Geoghegan delivered judgment on May 20, 2010.
The parties first reached an oral agreement in October 2006 for a house to be built broadly to the same specification as another nearby mews. Their written contract was dated July 12, 2007.
A central problem was the attic. The parties agreed that it would be finished as a bedroom with an en suite bathroom. However, the planning permission expressly required the attic to be used for storage only and not converted into habitable accommodation.
The judge found that both Mackin and Deane knew the agreed attic works conflicted with the planning permission. By October 21, 2008, when Mackin served a formal Completion Notice requiring the sale to close, the attic remained converted for habitable use. Mackin was therefore not then ready, willing and able to complete the contract lawfully and could not obtain specific performance.
The court also found that Deane's principal reason for not completing was his inability to secure finance following changed market conditions, and that reliance on contractual conditions concerning planning and completion provided him with a convenient excuse.
However, Deane's counterclaim also failed. The court held that he could not be treated as an innocent party entitled to rescind over a planning breach that arose from works he had himself agreed with Mackin should be carried out.
The judge also rejected Deane's argument that a later refusal to allow an inspection justified rescission, finding he had failed to seek inspection within a reasonable time after being told the property was complete.
Both Mackin's claim and Deane's counterclaim were dismissed.