Ardbana Services Limited v O'Kane & Devine Construction Limited
| Jurisdiction | Northern Ireland |
| Judge | Horner J |
| Judgment Date | 19 September 2016 |
| Neutral Citation | [2016] NICh 13 |
| Court | Chancery Division (Northern Ireland) |
| Date | 19 September 2016 |
1
Neutral Citation: [2016] NICh 13 Ref:
HOR10035
Judgment: approved by the Court for handing down Delivered:
19/09/2016
(subject to editorial corrections)*
2012 No: 91580
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
CHANCERY DIVISION
________
Between
ARDBANA SERVICES LIMITED
Plaintiff
and
O’KANE & DEVINE CONSTRUCTION LIMITED
Defendant
________
HORNER J
A. INTRODUCTION
[1] There are two central issues in the case. The first is not controversial. The
plaintiff claims the defendant has failed to surrender up to the plaintiff its freehold
interest in a development on the banks of the River Bann (“the River”) following the
sale of the last apartment pursuant to a lease dated 7 December 2004. The defendant
has claimed that it has been precluded from doing so because of, inter alia, a
mapping error in the layout and design of the estate development and in relation to
car parking. This matter is no longer a contentious issue between the parties. The
defendant agrees to surrender its freehold interest pursuant to the agreement and
consequently this issue does not require a decision from the court.
[2] The second issue however is keenly contested. The defendant claims that it
enjoys a right of way over the plaintiff’s lands permitting it to enjoy access for all
purposes, and in particular vehicular access, to an area of land (“the Garden”) which
immediately adjoins the apartment block on the River Bann on the right side looking
out towards the River. This area of land was owned by Mr and Mrs Ghaie (“the
Ghaies”) and was transferred to the defendant by Deed of Conveyance dated 4 July
2007. This comprised the land situate at the rear of the premises formerly known as
7 Ardbana Terrace, Mountsandel Road, Coleraine. The title to the house and garden
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