RECEIVERS AND APPLICATION OF PRINCIPLES OF EQUITY IN ENFORCEMENT OF A SALE “RESTING IN CONTRACT”
Mr. Justice Max Barrett in High Court Judgement dated 3 November 2015 in the case of George Maloney (receiver of John Fleming Construction Limited) and Ted O’Connor/Donal Dunne, declined to grant orders under the 1893 Trustee Act directing Messrs O’Connor and Dunne to step down as trustees of property the subject of a land sale at Waterfall, Co. Cork. The Court held that the relevant 2003 Contract provided both for payment of a lump sum and payment of a Split Benefit to the Vendors. The judge stated that the Receiver in his application demanded that Messrs. O’Connor and Dunne performed their obligations under the land sale contract while at the same time the Receiver was refusing to perform a central obligation under that contract to make the Split Benefit payment. He decided that the Court could not in good conscience and pursuant to the maxims of equity, accede to an application marred by “reproachable conduct”.
The key argument made by the Receiver was that an acknowledged agreement - determined by the Court to be a central part of the land sale contract itself to split between the parties the benefit to be gained by the Purchaser in acquiring the property without taking a formal deed (which would have required payment of significant stamp duty) - which was termed the Split Benefit by the Court - was not in fact properly evidenced in writing as required under the Statute of Frauds (now the 2009 Land and Conveyancing Law Reform Act). The Court dismissed this argument and indeed accepted (if this were to be an issue) that a typewritten note to file by the solicitor for the Purchaser made at the time of “completion” of the land sale contract acknowledging the Split Benefit did, when combined with the land sale contract itself, comprise a note or memorandum sufficient for the respondent Vendors to reply upon for the purposes of the Statute of Frauds.
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