[2004] 1EHC 344
THE  HIGH  COURT

2003/13500P

WILLIAM HALDANE AND LISA HALDANE

PLAINTIFFS

AND

THOMAS ROONEY

DEFENDANT

Judgment of Finnegan P. delivered on the 2nd day of November 2004.

By Plenary Summons issued on the 3rd December 2003 the Plaintiff seeks specific performance of an agreement made between the parties on or about the 26th day of November 2002 whereby the Defendant agreed to sell and the Plaintiff agreed to purchase the lands and premises comprised in Folios 8531F and 12300F of the Register County Kerry or in the alternative damages in addition to or in lieu of specific performance.  The matter comes before me by way of Motion issued on the 12th day of May 2004 in which the Defendant seeks an Order pursuant to the inherent jurisdiction of the Court or Order 19 Rule 28 of the Rules of the Superior Courts dismissing the Plaintiff’s action it having no reasonable possibility of success.  The jurisdiction to make such an Order is well established since the decision in Barry v Buckley (1981) I.R. 306.  There is no dispute about the sequence of events.  The Defendant’s solicitor issued the contracts on the 14th December 2001 and this was followed by protracted correspondence.  The contracts were ultimately executed by the Plaintiff and the Defendant and dated 26th November 2002.  The contract is in the Law Society of Ireland Standard Form 1995 Edition.  The closing date was not inserted into the Memorandum and accordingly the closing date provided for in the general conditions applied, the first working day after the expiration of five weeks computed from the date of sale.  There was an anticipation that the sale would in fact close on the 16th December but this did not happen.  In that anticipation on the 10th December 2002 the Defendant’s Solicitor sent all necessary documents to the Plaintiff’s Solicitor and requested a cheque for the balance of the purchase monies in the amount of  €176,691.51 this being the euro equivalent of the contract price which had originally been stated in Irish punts.  By letter dated 13th January 2003 the purchaser’s Solicitor sent a closing statement to the vendor’s solicitor under cover of a letter in the following terms –

“Dear Sirs,

We expect funds over the coming day to discharge the amounts due and owing to your client.

The amounts will be paid to your client by way of US $ which we understand is the manner in which your client wishes to be paid.

We enclose a completion statement which sets out the amounts due and owing.

We will transmit directly to your office two bank drafts in the total sum of US $166,673.09  made payable to your client being the balance due as per the attached completion statement to your client.

Yours faithfully,”

The Vendor’s Solicitors replied by fax on the 21st January 2003 in the following 
terms –

“Further to our recent telephone conversations, we have now been informed by our client that no dollar agreement was made between our respective clients.  The agreed price is €196,809.40 less deposit paid of  €20,117.89.  Accordingly the sum of  €176,691.51 is to be converted into dollars on the day of completion.”

No further correspondence ensued until the 20th February 2003 when the Defendant’s Solicitor served a completion notice on the Plaintiff’s Solicitor.  The completion notice is in the following terms –

“Completion Notice

Thomas Rooney Vendor
William and Lisa Haldane Purchasers

The Vendor is able, ready and willing to complete this sale.

The Purchasers have failed to complete this sale on or subsequent to the closing date of 16th December 2003. 

The Purchasers are hereby required to complete the sale within a period of 28 days of the date of service of this Notice in accordance with Condition 40 of the Contract for Sale.

Dated this 20th day of February 2003.”

Gleeson McGrath Baldwin
Solicitors for the Purchasers
29 Anglesea Street
Dublin 2

No response was received from the Purchaser’s Solicitors and by letter dated 7th April 2003 the Defendant’s Solicitors forfeited the deposit.  On the 27th May 2003 outside the period limited by the Notice to Complete the Plaintiff’s Solicitors responded  by letter as follows –

“Dear Sirs,

We refer to previous correspondence resting with your letter of the 20th May 2003.

Your client has no entitlement whatsoever to forfeit the deposit of our client pursuant to Clause 41 of the Contract for Sale or for any other reason.

The contract documentation to which you refer represents a memorandum in writing as between our respective clients which, amongst other things, satisfies the requirements of the statute of frauds in that it evidences the parties to the transaction, the property being transacted and the price which was agreed upon.

However, the contract did not, and does not reflect the full extent of the agreement which came into being between our respective clients.  It is common place that your client wanted to be paid in US dollars and that our client agreed to make the payment in the same currency.  However, through inadvertence, oversight, or otherwise our respective clients did not agree on a date for the purposes of referencing the exchange rate between the US dollar and the euro.  From our instructions and from a reading of the file, it is clear that this transaction has taken an inordinate amount of time to be brought to completion.  In this context, it is noted that you first submitted contract documentation as far back as the 14th December 2001.  Even in the earliest days, it is notable that there was a degree of confusion concerning the purchase price and the currency in which it was to be paid.

Your client is now seeking to take advantage of this confusion.  He is trying to profiteer and seek unjust enrichment at the expense of our client by exploiting the fact that the exchange rate between the US dollar and the euro has moved to a significant degree over the passing of months.  In so doing your client is endeavouring to act in an unconscionable fashion and against his own bargain.

In the absence of any possibility of reaching agreement in relation to the dollar/euro conversion rate, the only course of action open to our client (who is always was and remains ready willing and able to complete this transaction) is to tender the balance of the purchase monies as per contract to you on behalf of your client in euro to satisfy the memorandum as executed between the parties.

Accordingly we enclose our cheque in the sum of  €176,691.51 to represent the balance monies payable to you at this point in time.  The sum is computed having regard to the fact that the purchase price as agreed (in euro) amounted to €196,809.40 and the fact that a deposit of  €20,117.89 being paid to date.

As far as we are concerned, there is no question of interest penalties or forfeiture arising as the disagreement between the parties has been largely caused by your client’s intransigence and by his continued endeavours to gain unjust enrichment at the expense of our client.

In your letter of the 10th December last, all of the deeds and documents of title were transmitted to us to be held in trust pending completion.  As far as we are concerned the present payment of the balance of the purchase price brings the matter to completion.”

The Defendant’s Solicitors rejected the foregoing contentions in a letter dated the 30th May 2003 and returned the cheque.  The Plenary Summons was then issued on the 3rd December 2003.  A lis pendens was registered on the 30th March 2004.

Counsel for the Defendants places particular reliance on the judgment of Costello J. in Stud Managers Limited v Marshall 1985 I.R. 83 and in particular a passage at page 86 –

“The Defendants Solicitor’s Affidavit suggests that the reason given by the Purchaser’s Solicitor for the failure of his client to close the sale are spurious ones and that the real reason is the Purchaser’s inability to raise the balance of the purchase price – a suggestion vigorously denied by the Plaintiff’s Solicitor in response.  This is a controversy that certainly cannot be determined on a Motion of this sort, nor need it be.  The issue for determination now is a different one and a very net one; namely, whether it has been clearly established that the Vendor was entitled to operate Clause 28 and 29 of the contract.  If she was the Plaintiff is not entitled to specific performance of the contract and its claim must fail.  The determination of that issue does not require that oral evidence be heard or that witnesses be cross-examined and it can be decided on the documentary evidence, which has been filed in connection with this Motion.  Only if the determination is a clear one should the Court dismiss the proceedings.”

The only issue which I have to determine on this application is whether the Completion Notice served was valid and effective.  The Plaintiff referred me to Delta Vale Properties Limited  v Mills & Others 1990 1 W.L.R. 445.  The form of contract in issue there was the Law Society’s General Conditions of Sale 1984 Revision Condition 23 thereof.  That Condition provided that upon service of a Completion Notice the transaction shall be completed within 15 working days of service.  The Completion Notice served referred to Condition 23 and required completion within 28 days after service of the Notice exclusive of the date of service.  In the course of his judgment Slade L.J. at page 454 said –

“In my judgment, Notices to Complete served under Condition 23, if they are to be valid, must be sufficiently clear and unambiguous to leave a reasonable recipient in no reasonable doubt as to how and when they are intended to operate.”

He went on to hold that the wording of the Notice despite unsatisfactory drafting and the granting of 28 rather than 15 days was sufficiently clear in its meaning and intent to leave the Plaintiffs in no reasonable doubt as to how and when it was intended to operate or else the consequences of non compliance.

Completion Notices were considered in a number of other cases.

In Rightside Properties Limited v Gray 1974 2 All E.R 1169 the Statutory Conditions of Sale applied and Condition 9 thereof provided for the giving of at least 21 days notice in writing to complete.  The Notice served was dated 23rd June 1972 and required completion “within 21 days from the date hereof” and expired on 20th July 1972.  The Purchaser argued that the Notice did not give him the 21 days provided for in Condition 9.    Walton J. held that the Notice to Complete requiring completion “within 21 days from the date hereof” and not of service was short and invalid as the earliest date upon which the Notice could have been received was the 24th June 2002 so that the period allowed was 20 days only.

In Dimsdale Developments (South East) Limited v DeHaan (1983) 47P & CR1 the Court was concerned with Condition 22 of the National Conditions of Sale Eighteenth Edition which provided –

“That the party to whom the Notice is given shall complete the contract within 28 days after service of the Notice (exclusive of the day of service)”.

The Notice to Complete served required completion “within 28 days from the date hereof” and referred to the National Conditions of Sale.  It was held that “hereof” in the Notice should be taken as the date of service rather than the date stated on the Notice and so the notice given was not short notice.  Further even if not a valid Notice under the National Conditions of Sale the Court would have been prepared to hold the Notice valid at common law.  The contractual provision in the National Conditions of Sale is stated to be without prejudice to other rights and I note a similar clause is included in the Law Society General Conditions of Sale at Condition 40(d).

In the course of his judgment Godfrey Q.C. said –

“In my judgment this notice, served as it was under cover of the letter of November 10, 1981, referring to the National Conditions of Sale, and referring as it did to the contract of September 30, 1981, which incorporated those conditions, should be treated as having been given and received pursuant to condition 22 of the National Conditions of Sale and so as a notice which made it a term of contract, in respect of which time was of the essence, that the contract should be completed within 28 days of the service of the notice exclusive of the day of service.  I appreciate that the notice was dated November 10, 1981, and was expressed to be a notice to complete within 28 days “from the date hereof”.  But a notice is something which is intended to bring its contents to the attention of the recipient and cannot do that until it reaches him.  I am of the opinion that speaking generally, a reference in a notice to “the date hereof” is at least as apt to refer to the date of its service as to the date on which it is and is expressed to be sent, and that the former date (the date of service) is actually to be preferred where, as here,

(a)	the notice is given pursuant to a contractual provision referring to that date;

(b)	the effect of so regarding it is to save, rather than to destroy, the validity of the notice; and

(c)	the recipient treated it as valid, or at least took no exception to it, until well after the 28 days had expired, and certainly had no ground for asserting that the reference to “the date hereof” in any way misled him.

Accordingly, I reject Mr. Levy’s argument that the notice, referring as it did to “the date hereof” must be treated as a notice requiring the period of 28 days to be calculated from November 10, 1981, and thus not a valid notice under condition 22.  The fact that the period of 28 days must, under condition 22, be calculated as a period exclusive of the day of service does not, I think, affect my conclusion, and I have not overlooked the decision of Walton J. in Rightside Properties Ltd. V Gray cited to me by Mr. Levy.  I understand Walton J. in that case to have been prepared, at least for the sake of argument, to treat the date of such a notice, even though referring to “the date hereof” as a notice limiting a period from the date of actual or presumed receipt of the notice rather than a period from the date expressed on its face.  (See the passage in his judgment at page 78).  But if the view he took in that case was inconsistent with the view I take in this I must express my respectful dissent from him.”

In Country and Metropolitan Homes Surrey Limited v Topclaim Limited 1997 1 All E.R. 254 the Court was concerned with the Standard Conditions of Sale (Second Edition) Condition 6.8 which provided as follows –

“6.8.1 At any time on or after completion date a party who is ready, able and willing to complete may give the other a Notice to Complete…

6.8.3  The Parties are to complete the contract within 10 working days of giving Notice to Complete.”

The National Conditions of Sale require completion within 10 working days “of” giving Notice to Complete.  The Law Society Standard Conditions of Sale Condition 40 require completion within a period of 28 days “after” the date of service.  It was unnecessary in that case however for the Court to consider whether “of” and “after” in this context bear the same meaning.  The Notice allowed in that case was in any event inadequate having been given by letter dated 3rd May 1995 to expire on the 9th May 1995.

In Babacomp Limited v Rightside Properties 1973 3 All E.R. 876 and  1974 1 All E.R. 142 the Purchaser contended that for a contractual completion notice to be effective it must sufficiently direct the attention of the recipient to the condition of the contract in question.  The Notice to Complete in that case was in the following
terms –

“Please treat this letter as Notice to Complete the contract in accordance with its terms and note that in the event of your client’s failure to complete, we have our client’s instructions to take appropriate proceedings against your client without further warning.”  

In the Chancery Division Goff J. said –

“It is clear that if one gives Notice expressly referring to Condition 22, that would suffice, and so also, of course would a Notice setting the whole thing out in extenso and requiring completion within 28 days after service of the Notice and stating that in that regard time was to be made of the essence.”

On appeal to the Court of Appeal Russell L.J. at page 144 said –

“I ask myself, reading the letter which I have just read out, in the context of this agreement, what other term or provision in the contract can be pointed to?  It cannot be a reference to the completion date stated in the contract because that had long since passed.  It is argued by Counsel for the Defendants that it could mean simply “complete in a reasonable time”, and therefore not be a reference to Condition 22.  I have already indicated that I personally have never heard of anything quite so woolly as a Notice to Complete, which is a well known animal in conveying circles, which does not directly or indirectly refer to a specified period in terms.  And I might make this point – maybe it is a debating point, but it does not wholly lack relevance when one is considering what, on a reasonable construction, should be thought was intended by the letter of 31st October – that on the 2nd November the other side’s Solicitors acknowledging the letter said this:

“We must ask you to please note that we are making no admission whatever as to the validity of the Notice to Complete which you have purported to serve”.  

The Solicitors would not leap to their pen or secretary to challenge the validity of the Notice if they thought for a moment that it was merely that woolly animal which was referred to by Counsel for the Defendants as Notice to Complete within a reasonable time.  I should have thought it was perfectly plain to their minds that this was in fact an attempt to operate Condition 22.  I think the Learned Judge is quite right in saying that nobody could reasonably take this letter or understand this letter as referring otherwise than to Condition 22 and I would agree with the Learned Judge that the letter was a valid Notice to Complete within the Condition.”

The foregoing representing the law in relation to Completion Notices I must consider whether the Notice served in this case is sufficiently clear in its meaning and intent to leave the Plaintiff in no reasonable doubt as to the Defendant’s intention.  I have regard to the following –

1.	The Notice is clearly headed Completion Notice.

2.	The  Notice contains an express reference to Condition 40 of the Agreement for Sale.

I am satisfied on the authority of Delta Vale Properties Limited v Mills & Others 1992 All E.R. 176 and Babacomp Limited v Rightside Properties 1974 1 All E.R. 142 that the Notice clearly intended to invoke General Condition 40 and was sufficient to convey that intention to the Plaintiff.

The Plaintiff raises a number of other objections to the Notice the first being that it gives him short time that is less than the 28 days provided for in Condition 40.  Firstly instead of requiring completion within a period of 28 days after the date of service it requires completion within a period of 28 days of service.  This objection it seems to me is not well founded.  The general rule of construction which applies where a period is allowed within which an act must be done is that the first day is excluded:  Goldsmiths Company v West Metropolitan Railway Company 1904 1 K.B. 1.  Applying this rule of construction to the circumstances of this case the substitution of “of” for “after” is not material the effect being the same.  

The second objection can be disposed of on the same basis.  The Completion Notice does not recite as is set out in Condition 40 that the date of service should be excluded.  I adopt the approach taken in Dimsdale Developments (South East) Limited v DeHaan 1983 47 P & C.R.1  and Delta Vale Properties Limited v Mills & Others 1990 2 All E.R. 176.  The Notice expressly referred to Condition 40 and the Purchaser’s Solicitor could have been in no doubt as to what was intended namely to invoke that Condition.  In any event construing the Notice in accordance with the Goldsmiths Company case its effect is that the date of service is in any event excluded.

Finally objection is taken to the Notice upon the basis that Condition 40(a) requires the Completion Notice to be given to the other party whereas the Notice in this case was addressed to and served upon the Plaintiff’s Solicitor.  Condition 49(b) provides that a Notice may be given or served by directing it to the intended recipient and delivering it by hand or sending by pre paid post to the office of the Solicitor representing the intended recipient in the sale.  This leaves however the issue as to whether Completion Notices being required by Article 40 to be given to the other party the same must be addressed to that party and not to his Solicitor.  There is no denial of the Plaintiff’s Solicitor’s general authority to act in the transaction and in these circumstances the general rule is that notice to a solicitor is actual notice to his client:  Espin v Pemberton (1859) 3 DeG & J 547.  Further the Notice to Complete was sent under cover of a letter addressed to the Plaintiff’s Solicitor which clearly set out that Solicitor’s client the Plaintiff.  I am satisfied that it is appropriate to read the letter together with the Notice and doing so I am satisfied that this complies with the requirements of Condition 40.

Having regard to the foregoing I am satisfied that the Notice to Complete was a valid and effective Notice pursuant to Condition 40 of the Conditions of Sale.  The time limited was appropriate and the Notice was duly given.  No attempt to complete the sale was made within the time so limited.  Accordingly I propose to make the Order sought.

Approved by Finnegan P.