The High Court has refused a subcontractor’s application for final judgment of €52,500 against a building contractor, finding that the contractor had raised a real defence requiring a plenary hearing.
The dispute concerns mechanical installation work on a hotel, office and apartment development. Winthrop Engineering Limited was the nominated subcontractor and David Flynn Limited was the contractor. The parties agreed that €52,500 was owed for Winthrop’s services, but disagreed about when David Flynn had to pay it.
The judgment, delivered by Mr Justice Mac Eochaidh on 31 July 2012, said the contractor’s original obligation under the building contract depended on its receiving from the developer money certified as due to the subcontractor. The developer had not paid an invoice issued by the contractor in September 2008, which included the €52,500.
The subcontractor’s application instead relied on an agreement the parties reached on 26 February 2009. An undated letter from Winthrop said the €52,500 would be paid within seven days after the contractor recovered that amount from Noel Burke Developments Limited, the developer. The letter also said the subcontractor could sue for any unpaid balance if €192,500 had not been paid within six months.
The contractor disputed that the six-month right to sue had been agreed. Emails sent by its quantity surveyor, Kieran Brophy, in April 2009 said he had no recollection of that term. The judgment said there was no apparent dispute that David Flynn had agreed to pay the €52,500 on receiving the money from the developer; the contractor’s position was that it had received none of it.
The judge concluded that the contractor had shown a real or bona fide defence to the claim. He said the disagreement about whether the six-month term was agreed involved an issue unsuitable for determination on the summary application and should be considered at trial.
The court refused the requested relief and adjourned the application to a plenary hearing under Order 37 of the Rules of the Superior Courts. It was to hear the parties on directions for pleadings. The ruling did not determine the final merits of the subcontractor’s claim. Evidence about a possible promise of future work as part of a settlement was held irrelevant to this application and did not prevent the contractor from defending the case.