A man has been ordered to perform a contract for the €460,000 sale of lands in Co Dublin where he lives in a house with his partner and father.
The Court of Appeal on Wednesday upheld a High Court order directing specific performance of the 2014 contract executed by Gavin Crowley concerning lands at Newbarn, Kilsallaghan.
In circumstances including that Mr Crowley has a debt of some €1 million to Start Mortgages, the High Court had not erred in refusing to award damages in lieu of specific performance, it held. On the application of David Allen BL, for Brian Leggett, purchaser of the lands, it lifted a stay imposed by the High Court, pending appeal, on the specific performance order.
Giving the Court of Appeal judgment, Ms Justice Caroline Costello said Mr Crowley, a builder, bought the lands in 2002 and constructed a house there. He later provided the property as security for loan facilities advanced to him by Bank of Scotland(Ireland) in 2006 and 2008. After he experienced financial difficulties and defaulted on his loan obligations, the bank demanded repayment of almost €1 million.
In late 2012, after the bank sought possession, Mr Crowley’s solicitors advised the property was for sale. Mr Leggett, who was anxious to buy a home for his family, viewed the property twice and a purchase price of €460,000 was agreed.
A contract for sale was executed about February 24th/25th 2014 with a closing date of March 4th, 2014. After Mr Crowley failed to complete that sale, Mr Leggett issued proceedings for specific performance.
In opposing those, Mr Crowley alleged the contract was illegal and unenforceable because he and Mr Leggett had allegedly agreed on a €65,000 “under the table” cash payment along with the purchase price, thereby under-declaring the stamp duty payable. He also alleged there was a boundary dispute and his house was partly constructed on lands of an adjoining owner in respect of which there were outstanding proceedings.
He further alleged he and his father would suffer hardship for reasons including his father would get no compensation for sums advanced to help Mr Crowley buy the lands in 2002.
The High Court’s Mr Justice Tony O’Connor rejected the claim of an under the counter payment rendering the contract illegal and unenforceable, a finding which was not appealed. He also dismissed the other grounds of defence.
Ms Justice Costello noted trespass proceedings by an adjoining landowner against Mr Crowley were adjourned generally in July 2006 with no further steps taken although a notice of intention to proceed was served in 2012. Mr Crowley had previously specifically confirmed there was no litigation pending or threatened concerning the property and no boundary dispute regarding it, she said.
The High Court accepted Mr Leggett’s evidence he only became aware in 2017 of a possible boundary dispute. It concluded there was no evidence of a continuing dispute in relation to the boundary or alleged trespass and Mr Leggett was aware of the risk in that regard. Ms Justice Costello said a purchaser can elect to take whatever title the vendor has to give. Hardship was never pleaded in advance of the trial and no case was made Mr Crowley and his partner and father will have nowhere else to live, she said.
The High Court had not erred in refusing to order specific performance on the basis of Mr Crowley’s claim he had to sell his family home by reason of his indebtedness and this amounted to hardship.
The High Court finding Mr Crowley had entered the contract willingly was binding on the Court of Appeal, she added.
Mr Crowley was registered as sole owner of the folio and no case was made out of hardship in respect of the father, she held. Mr Crowley had entered into a “binding and enforceable” contract for sale and the purchaser was “entitled to what he bargained for”.
