The High Court has allowed parts of a dispute over land at Rosslare Strand, County Wexford, to proceed, finding that Clearscape Property Developments Ltd had an arguable case against Bennett Tarmacadam Ltd over construction invoices, earlier court proceedings and Bennett’s purchase of the land.
In a judgment delivered on 22 July 2022, Ms Justice Emily Egan struck out claims concerning planning permission, the development agreement, the mortgage and the receiver’s appointment. She refused Bennett’s applications to dismiss the remaining claims, discharge a lis pendens registered by Clearscape, and require Clearscape to provide security for Bennett’s legal costs.
Clearscape, the former owner, claims that the transfer of the property to Bennett was invalid and seeks damages. Bennett bought the land from Allied Irish Banks in 2018 for €80,000 after the bank appointed a receiver. Clearscape says the sale was at a gross undervalue. The judgment records that the land had been bought for €910,000 in 2007 and was valued at €490,000 in company financial statements dated weeks before the sale. The court did not decide that the sale was unlawful or that the transfer should be set aside.
The company also claims Bennett was not entitled to invoice it for construction costs before the eight-unit development was completed. The agreement provided for building costs to be repaid from unit sale proceeds, with profits or losses shared when the development was complete. After one unit sold in 2014, Bennett invoiced €516,041.81 for works completed to that point and later issued a second invoice for €266,520.81. The judge found there was a reasonable argument that the invoices did not comply with the agreement, and that the claim could proceed.
Clearscape further alleges Bennett wrongfully started proceedings in 2016 over unpaid invoices, did not serve them, and registered a lis pendens against the land. The judge found credible evidence supporting an arguable claim that those proceedings were commenced or maintained without reasonable and probable cause and used for an improper purpose. She also found an arguable basis for Clearscape’s claim that the transfer could be set aside if a purchaser had notice of an irregularity or unlawfulness in the sale. These were preliminary assessments on an application to dismiss, not final findings of liability or title.
The judge said the allegations that Clearscape’s director, Owen Doyle, was coerced by his father into signing transaction documents did not establish a claim against Bennett, which was not alleged to have participated in or known of that coercion. She made no finding on whether the coercion allegations were true. The judgment also records that Doyle was not a party to the application and that neither his father, AIB nor the receiver was a party to the proceedings.
The court declined to discharge Clearscape’s lis pendens because it found an arguable claim to an interest in the land. It also refused security for costs, saying Bennett had not provided a defence that enabled the court to determine whether it had a prima facie defence to the claims allowed to proceed.