The High Court has ruled the Dublin Port Company (DPC) is entitled to possession of property which had been leased to a haulage company of businessman Simon Crosbie, son of Harry Crosbie, who once had large interests in the docklands.
The semi-state DPC claimed Automation Transport had been overholding on a lease for a former builders’ providers timber storage property at Promenade Road in Dublin. DPC said it required the property for wider redevelopment of the port for core import and export activity.
The court rejected a counterclaim by Automation, which operates a road haulage business from the premises, that it was entitled to a new tenancy. Automation employs 19 and is principally involved in transporting bulk materials from the port to customers.
While granting DPC a possession order, Mr Justice Denis McDonald criticised DPC for bringing its proceedings against Automation before investigating certain claims it made. These included a mistaken claim that Automation was in breach of its lease by processing plastics on the premises and another claim about the failure to keep them in good repair.
The judge said it was “surprising and very unsatisfactory” that any party, but particularly a public body like DPC, would make an allegation about breach of a covenant to repair the premises without first inspecting the premises, he said.
The property was leased to Simon Crosbie’s company in February 2013, after it had to move out of its previous premises at Tolka Quay Road. The Promenade Road premises were held under leases by Harry Crosbie companies along with two premises at Tolka Quay Road.
At the time, Harry Crosbie was in Nama and following negotiations also involving Nama and DPC, an agreement was made to sell the three premises to DPC for €5 million.
Promenade Road
As part of the deal, his son’s haulage business could move to Promenade Road under a new lease. Promenade Road largely consisted of an open hardstanding concrete surface, a number of rudimentary corrugated iron sheds and a two-storey office building.
The new lease contained a provision that the tenant was to execute a “deed of renunciation” waiving any right to renew the lease. It also contained a break clause allowing either party to terminate the lease on its fifth, 10th, 15th or 20th anniversary.
In 2017, DPC notified Automation it was exercising the break clause (in February 2018, the fifth anniversary) but Automation replied the break notice was not effective to terminate its interest in the premises.
DPC brought proceedings alleging overholding by Automation and also sought an injunction for alleged misuse of the premises for plastics production in what the judge said was a “mistaken understanding”.
Mr Justice McDonald said DPC initially said Automotive had not executed the promised deed renouncing its right to renew the lease but later accepted it had done so. The judge said he was left with the impression that no proper investigation was carried out by DPC prior to launching its proceedings.
It was particularly hard to understand because DPC had sought to have the case fast-tracked through the High Court’s commercial division, he said.
Errors and inconsistencies
He said while there were a surprisingly large number of errors and inconsistencies in the deed of renunciation, it was clear corrections should be made to them, and in those circumstances it meant there was a clear and unequivocal renunciation by Automotive of its right to acquire a new tenancy.
He did not accept the claim that Simon Crosbie did not receive legal advice prior to signing the renunciation deed.
The judge rejected DPC’s claim for damages in relation to the condition of the sheds and hardstanding area at the property which were, it was claimed, damaged to the tune of €307,000. It would be inappropriate to award damages in circumstances where the hard standing area and the sheds will not be used again, he said.
The future of the office building has yet to be clarified, but this was a matter which could be readily dealt with by negotiations between surveyors for both sides, he said.
The judge deferred making any further order in relation to that and other “sundry items” concerning the premises pending discussions between the parties.
Costs will also be decided later.
