The High Court awarded Michael Heffernan €319,460 in damages after finding that the Ballykisteen Developments Partnership had failed to provide the replacement home and garage promised under a 2005 agreement. The award is against the first to twelfth named defendants jointly and severally. The court made no award to his co-plaintiff, Linda Heffernan, who was a member of the partnership.
The plaintiffs had transferred their Ballykisteen home, known as the Groom’s House, to the partnership for a development. The agreement provided for €72,000 and a replacement house and garage on a site selected by the plaintiffs. They left the house in about January 2005; it was demolished about February or March that year. They then occupied two rent-free lodges in the development.
Construction of the replacement house began after planning permission was granted but stopped at roof level when the partnership encountered financial difficulties. The site had been secured to Ulster Bank, which did not agree to its transfer to the plaintiffs until 2013. The court found that the contractual obligations to provide the site, house and garage had not been performed. The plaintiffs elected to seek damages instead of specific performance and waived a separate contractual claim of €250 per week for delay.
The court rejected the defendants’ argument that the contract had been frustrated because of the bank’s charge and the appointment of a receiver. It held that damages could be awarded where specific performance was no longer possible, particularly as the plaintiffs had performed their side of the bargain. The court also rejected an application to dismiss the case on the basis that the plaintiffs had not come to equity with clean hands, after considering their undisclosed settlement with the bank and the confidentiality clause attached to it.
The court dismissed the claim against John Simpson. It found he was not a party to the sale contract or a member of the partnership, and that the claim that he had held himself out as a partner was a new ground that required an amendment to the pleadings. The court also found that Patrick Kingston could not rely on a deed releasing him from partnership liabilities because the power of attorney used to execute it did not authorise that release. The Ryan siblings were bound by the partnership’s contractual obligations; the court found that a document purporting to exempt them had not been signed by all partners.
The court concluded that Linda Heffernan could not recover damages against a partnership of which she was a member in this action. It therefore awarded the first plaintiff alone €319,460, based on unchallenged evidence that this was the approximate cost of completing the house to the agreed standard. The judgment does not award the plaintiffs the site or order completion of the house.