Joanne McGarrity and Nigel McGarrity and Sarcon (No. 177) Limited
| Jurisdiction | Northern Ireland |
| Neutral Citation | [2015] NICh 22 |
| Date | 16 April 2015 |
| Court | Chancery Division (Northern Ireland) |
1
Neutral Citation: [2015] NICh 22
Ref:
BUR9533
Judgment: approved by the Court for handing down
Delivered:
16/04/2015
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
CHANCERY DIVISION
________
2010 No. 002862
BETWEEN:
JOANNE McGARRITY
and
NIGEL McGARRITY
Plaintiffs;
-and-
SARCON (NO. 177) LIMITED
Defendant.
________
BURGESS J
Background
[1] Joanne and Nigel McGarrity are the plaintiffs in these proceedings. I will
refer to them hereafter as the Purchasers.
[2] The defendant is Sarcon (No. 177) Limited. This company is the developer of
the James Clow Apartments at Pilot Street, Belfast. I will refer to it as the Vendor.
[3] The Purchasers represent one case selected from a group of litigants (‘the
Group’) set out in Schedule 1 of a Group Litigation Order made by Deeny J on
11 September 2013 (‘the GLO’).
[4] A consolidated statement of claim was delivered representing the GLO issues,
which are being pursued on behalf of the Group. The statement of claim in this
action was amended to reflect the GLO issues as they apply to the facts in this case.
It is agreed that the other GLO Purchasers will not amend their individual pleadings
pending the outcome of the GLO but may amend those (if necessary) to incorporate
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the GLO issues (where not specifically pleaded in their existing individual
pleadings) following judgment in this case.
[5] The Purchasers, with another party, sought a “Representative Order” under
the provisions of Order 15 Rule 12 of the Rules of the Supreme Court seeking to
include non-Group Purchasers in the decisions of the court in relation to the issues
set out in the GLO. Their concern related to the costs exposure incurred by them
while the remaining purchasers essentially got the benefit of their efforts: and the
Vendor’s concern that if it succeeded in the issues raised in the GLO, the remaining
purchasers could seek to raise arguments and incur costs and time with issues which
were not directly argued in the GLO proceedings. This was on the basis that the
purpose of the GLO and any group litigation in general is to bring finality to the
litigation before the courts.
[6] While I refused that application, I gave a series of Directions to all those
parties not involved in the GLO and, through them, other potential parties who may
become involved by reason of claims of professional negligence. The purpose was to
invite them either to join the GLO or to immediately amend their proceedings in
respect of any matter they wished to argue either differently to the arguments put
forward by the Purchasers or alternatively in respect of other arguments that they
may wish to raise and which could be then addressed in these proceedings. Those
parties were given notice that failure to carry out any such step would result in a
refusal to amend their proceedings in the future. I am advised that no steps have
been taken by any of the parties upon whom those Directions have been served. In
that way therefore it is hoped that resolution of the GLO issues will be binding on all
purchasers of apartments in this development.
[7] That of course leaves issues particular to the facts in each individual case. By
way of example, there may have been specifications in relation to an apartment
different to others about which complaints are made and which this court will not be
addressing: in the legal process of purchasing an apartment requisitions may well
have been raised with replies given which may impact on the rights and liabilities of
either party: and information may have been given to individual purchasers
different to that given to others which may have the effect of in some way qualifying
representations upon which either party may rely. These are simply given by way of
illustration.
[8] During the course of the proceedings, a number of new issues arose in
relation to the GLO issues as a result of evidence given. The court is grateful to both
parties and their legal representatives for taking a pragmatic approach to such
developments and, with the consent of the court, the statement of claim and defence
underwent further amendments so as eventually to reflect all of the issues upon
which the determination of the court is sought.
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Previous legal proceedings
[9] The Purchasers entered into a Building Agreement with the Vendor dated
4 May 2007 (the Building Agreement). This was for the purchase of an apartment
(the apartment) at the Granary Building (Block A), James Clow Development, Pilot
Street Belfast. The site number was 128, the contract price was £282,500 and the
deposit was £28,250. The date of completion in the Building Agreement was 31 May
2009.
[10] The development included in addition to Block A, a separate block known as
Merchants Building (Block B) and common areas within the development site.
[11] In April 2009, the Vendor’s solicitors wrote to inform all purchasers
(including the Purchasers) that the completion of the apartments (originally
scheduled to be completed in May 2009) would be extended to October/November
2009. The purchasers did not accept that the Vendor was entitled unilaterally to an
extension of time, contending that time was “of the essence pursuant to Clause 23 of
the Building Agreement”. They then sought to rescind their respective agreements.
The Vendor’s solicitors responded by asserting that ‘the Building Agreement and the
Agreement for Lease remain in place between our respective clients and our client
shall enforce each and every provision of same’. Thereafter, following further
correspondence, the Vendor served a Notice to Complete on the purchasers of
apartments in Block B on the 27 October 2009 (the October Notice to Complete), and
on the purchasers of Block A on 8 December 2009 (the December Notice to
Complete).
[12] The Court of Appeal has given judgment in relation to a number of salient
terms within the Building Agreement, most importantly a determination that the
date of completion, namely 31 May 2009, was not a date for which time was “of the
essence” pursuant to Clause 23 of the Building Agreement. Instead the Court
accepted that the Vendor was entitled to an extension of time within the provisions
of paragraph 8 of the Building Agreement, subject to an assessment of fact of
whether or not the grounds for extension of time fell within the definition of Clause
8.
[13] A secondary issue considered by the Court of Appeal was that if any period
of delay fell outside the reasonable extension provisions under Clause 8, then the
Vendor would be liable in damages for any loss sustained by the purchaser in
consequence. No evidence has been given that the reasons for the extension of time
fell outside the provisions of Clause 8, and therefore these issues no longer arise in
the GLO proceedings.
[14] The Purchasers and the other purchasers however now deny that they are
obliged to complete their respective agreements with the Vendor and seek the return
of the deposits paid in respect of the apartments.
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