THE HIGH COURT
			1998 No. 13574p
BETWEEN
EOIN MORAN
			PLAINTIFF 
AND
OAKLEY PARK DEVELOPMENTS LIMITED
			DEFENDANTS

JUDGMENT of Mr. Justice Diarmuid B. O'Donovan delivered on the 31st day of 
March, 2000
	In this case, I am asked to consider a Motion on behalf of the Plaintiff dated the 1st day of October, 1999 seeking Judgment in default of Defence and a Motion on behalf of the Defendants dated the 1st day of November, 1999 seeking; on the one hand, an Order vacating a Lis Pendens registered by the Plaintiff and, on the other, an Order dismissing the Plaintiff's claim, either pursuant to Order 19, Rule 28 of the Rules of the Superior Courts, or pursuant to the inherent jurisdiction of the Court; the Defendants maintaining, in either case that the Plaintiff's claim does not disclose a reasonable cause of action, or that the same is frivolous or vexatious.
	Although the Plaintiff's Notice of Motion was first in point of time, it was 
agreed by the parties that I should first of all adjudicate upon the Defendants' Notice of            Motion dated the 1st of November, 1999 and, in that regard, it was conceded by Mr. George  
Brady, Senior Counsel on behalf of the Defendants that the Plaintiff's Statement of Claim       disclosed a cause of action and, accordingly, for the purpose of adjudicating upon the reliefs   sought by the Defendants, I must assume that the facts pleaded in the Statement of Claim and the facts asserted in the grounding Affidavit sworn herein by the Plaintiff, Eoin Moran, on the 
10th day of December, 1999 are true.                                                                                          
	Before considering the facts of the case, I think it as well to set out the circumstances under which the Court has power to dismiss the Plaintiff's proceedings.  In this regard, Rule 28 of Order 19 of the Rules of the Superior Courts provides: 
	
	 "The Court may order any pleading to be struck out on the ground
	 that it discloses no reasonable cause of action or answer and in any 
	 such case or in case of the action or defence been shown by the pleadings
	 to be frivolous or vexatious, the Court may order the action to be stayed 
	 or dismissed or Judgment to be entered accordingly as may be just".

In addition to that specific rule, there is an inherent jurisdiction in the Court to ensure that there is no abuse of the process of the Court.  In that regard, in an unreported Judgment delivered on the 28th day of July, 1999 in the case of Jodifern Limited  v. Patrick G. Fitzgerald and Margaret Fitzgerald,  McCracken J. reviewed what appears to me to be the relevant authorities and, in particular, he referred, with apparent approval, to a Judgment of Costello J. delivered in the case of Barry  v. Buckley (1981 I.R. at page 306) and a Judgment of McCarthy J. in the Supreme Court delivered in a case of Sun Fat Chan  v. Osseous Limited (1992 1. I.R. at page 425); the import of which Judgments is that, while the jurisdiction should be exercised sparingly and only in clear cases so that, generally speaking, that Courts should be slow to entertain such applications, if, having considered all relevant documentation, the Court is satisfied that a plaintiffs claim must fail, then it is a proper exercise of its discretion to strike out proceedings on the grounds that their continued existence cannot be justified and manifestly causes irrevocable damage to a defendant.  In addition, McCracken J. referred to an unreported Judgment delivered on the 15th day of March, 1999 by Macken J. in the case of Supermacs (Ireland) & Anor v. Katesan (Naas) Limited & Anor in which, when considering this inherent jurisdiction of the Court, the learned Judge said: 

	"Turning now to the question as to whether of not the defendants
	are entitled to have their relief relying on the inherent jurisdiction
	of the Court, when one is considering a claim of this nature based 
	on the inherent jurisdiction of the Court, it is permissible for 
	Affidavit evidence to be filed.  A number of Affidavits have been
	filed and, although there are several conflicting elements in the
	Affidavits there are certain principles which Mr. Buttenshaw has
	correctly acknowledged and conceded, including the fact that I 
	must assume;  
	 (a) that every fact pleaded by the plaintiffs in their Statement of 
	      Claim is correct and can be proved at trial, and  
	(b) that every fact asserted by the plaintiffs in their Affidavits is 
	     likewise correct and can be proved at the trial".
	This particular approach which is adopted as being the correct
	approach in all of the cases in which Affidavit evidence has been 
	adduced does mean that, insofar as there may be conflict between 
	matters averred by the plaintiffs and the defendants in their respective 		Affidavits, such conflicts must be, at least for the purpose of this 
	application, resolved in favour of the plaintiff.”
McCracken J. expressed his entire agreement with that  statement of the law and, for the purpose of the Judgment which he was delivering, he adopted it.  Likewise for the purpose of this case, so do I.
	In the Plenary Summons delivered herein, the Plaintiff's claim is stated to be:

"Specific performance of a contract made between the Plaintiff of the
one part and the Defendants of the other part whereby the Defendants
agreed to sell and the Plaintiff agreed to purchase ALL THAT AND THOSE
the lands known as 15 Ryemont Abbey, Leixlip in the County Kildare,
together with the premises to be build thereon by the Defendants, being
the property described in Folio 8876 of the Register County Kildare."

In the Statement of Claim at paragraph 2 it is pleaded (inter alia) that:- 

"The Defendants at all material times carried on business as developers
of land and builders of houses, in particular, at a housing estate known
as Ryemont Abbey, Leixlip in the County Kildare"

	At paragraph 3 it is pleaded that:-

"By an oral agreement made in or about the month of May 1996, the                  Defendants agreed to build and convey to the Plaintiff a dwellinghouse 
on site number 15 of the said housing estate for the sum of
£101,000."	

	At paragraph 4 it is pleaded that:-
	
	"It was agreed between the Plaintiff and the Defendants that the said house should be mainly one of the standard types and design being constructed on the said estate but subject to certain modifications requested by the Plaintiff and accepted by the Defendants between the month of May, 1996 and November, 1996 inclusive.  The said modifications were duly incorporated in the construction of the said house."

	Particulars of the aforesaid modifications are included in the Statement of Claim and, in paragraph 5 thereof, it is pleaded that:-

	"Pursuant to the aforesaid agreement the Defendants on or about the 
	16th day of May, 1996 prepared and tended for execution by the 
	Plaintiff a written form of contract incorporating the terms theretofore 
	agreed between the parties and expressly providing that, on or before 
	the closing date as therein defined, the Defendants should procure the 
	grant of a Deed of Transfer to the Plaintiff in the form of a draft Deed	
	of Transfer produced therewith.  The said written form of contract further provided for payment of £7,600 (being the balance of the deposit of £10,100  of the contract price of £101,000) on the signing of the said contract and the balance of the contract price on the closing day".

	At paragraph 6 of the said Statement of Claim it is pleaded that:-

	"In or about the month of July, 1996, the Plaintiff and the Defendants
	agreed that clause 26 of the said written form of contract should be 
	amended to read as follows "the figures 26.  The vendor is erecting 
	at the request of the purchaser an extension to the rear of the premises
	not in accordance with planning permission.  However, the vendor
	confirms the premises.  Save the extension, comply with planning 
	permission and the full property erected complies with building 
	regulations". ".  

	At paragraph 7 of the Statement of Claim it is pleaded that:-

	"The Plaintiff signed the said written form of contract with the 
	amendment set out at paragraph 6 hereof and returned the same
	to the Defendant's Solicitor's on the 11th day of September, 1996
	together with the said sum of £7,600 in part payment of the 
	contract price."

	And at paragraph 8 of the Statement of Claim it is pleaded that:-

	"The contract between the parties has been partly performed":

the details of the alleged part performance being included in the said paragraph but I do not 
consider it necessary for the purpose of this Judgment to review them in detail.

	A number of Affidavits have been filed on behalf of the parties from which it is clear that a conflict of evidence arises in a number of respects.  However, in the circumstance that, as I have already indicated, for the purpose of this application, I must assume that every fact asserted by or on behalf of the Plaintiff in Affidavits filed on his behalf are correct and can be proved at the trial of this action,  I cannot and do not adjudicate upon those conflicts.  Nevertheless, Counsel for the Defendant's referred to a letter dated the 3rd day of May, 1996 addressed to the Defendant's Solicitor, Mr. Enda P. Moran, by Messrs. McEvoy & Associates, Auctioneers & Estate Agents, in which Messrs. McEvoy & Associates advised Mr. Moran that they had negotiated the sale of number 15 Ryemont Abbey aforesaid to the Plaintiff for a sum of £101,000 and had received a booking deposit of £2,500 from the Plaintiff but pointing out: "This sale is subject to contract, good title, loan approval and satisfactory surveyors/architects report" and noting, "that this firm has no authorisation to bind our client to any contract for sale and it is understood that no contract shall come into existence until such time as formal contracts are exchanged and a deposit paid".
	Counsel for the Defendants also referred to a letter dated the 15th day of May, 1996 addressed by the Plaintiff's then Solicitors Messrs. Augustus Cullen & Son, to the Defendants said Solicitor, Mr. Moran in which reference is made to the said alleged agreement for sale of 15 Ryemont Abbey but in which the Plaintiff's said Solicitors specifically indicate that the said sale is "subject to contract/contract denied" and that, "we have no instructions to bind our client in any negotiations at this stage and no contract shall be deemed to exist until such time as both parts of the contract have been signed by both parties and the full deposit paid".  In the light of that correspondence and, indeed, further correspondence which passed between the Solicitors for the parties and in which specific reference is made to the said agreement for sale being "subject to contract/contract denied", Counsel for the Defendants submitted that, in fact and in law there was no concluded agreement for sale between the parties because it was a precondition to the conclusion of such an agreement that there would be an exchange of contracts which, in fact, never occurred and that, in any event, the use of the phrase "subject to contract" in the correspondence is inconsistent with the recognition of the existence of a concluded agreement.  In support of those propositions, Counsel for the Defendants referred to the decision of the Keane J. in Mulhall v. Haren (1981 1 I.R. at page 364) which was approved of in a Judgment of the Supreme Court delivered in a case of Eoin Boyle and Susan Boyle v. Maura Lee and Eve Goins (1992 1 I.R. at page 555) and to a decision of the Supreme Court delivered in a case of Joseph Kelly v. Irish Nursary & Landscape Company Limited (1983 I.R. at page 221), which decisions appeared to be in point.  Counsel for the Defendants also submitted that there were no acts of part performance on the part of the Plaintiff and that, in any event, in order to succeed in an action for specific performance under the doctrine of part performance it must be shown that there was a concluded contract between the parties.  In support of that proposition, Counsel for the Defendants referred to a decision of the Supreme Court in a case of Leslie Mackey v. David Wilde and Helmet Longin (1998 1 ILRM at page 449) and to a Statement at page 135 of Irish Law of specific performance by John Farrell were in it appears,

	"for a Plaintiff to get as far as relying on part performance there must
	be a concluded contract.  If there is no valid contract the question of
	part performance does not arise".

essentially, therefore, Counsel for the Defendants submitted that, irrespective of any conflict of evidence with regard to the facts of this case, in the light of the correspondence which was exchanged by the parties and, in particular, in the light of the assertion by the Plaintiff's Solicitors in their said letter of the 15th day of May, 1996 to the Defendant's Solicitors that the said agreement was "subject to contract" and that "we have no instructions to bind our client in any negotiations at this stage and no contract shall be deemed to exist until such time as both parts of the contract have been signed by both parties", it would be inequitable were the Plaintiff not bound by the condition imposed by his own Solicitors: namely, that the agreement was subject to contract and that, in that event, it is certain law that an agreement subject to contract is not a concluded agreement.
	On behalf of the Plaintiff, Mr. Geraghty submitted that, to succeed in having the Plaintiff's claim dismissed at this stage of the proceedings, the onus was on the Defendants to establish that there was no possibility that the Plaintiff could succeed in his claim herein: in other words, that the Plaintiff's claim was doomed to inevitable failure.  However,  Mr. Geragthy argued that, not withstanding the correspondence which was exchanged by the parties, it was open to the Court to conclude that the parties had entered into an oral contract which was backed by acts of part performance and that the strictures of the correspondence in the month of May, 1996 was waived by subsequent conversations and by the actions of the parties.  In particular, he submitted that the house in question had been built and tailored by the Defendants to the Plaintiff's requirements.  In this regard, Mr. Geragthy referred to a decision of Costello J. in a case of D.K v. King  (1994 1 I.R. at page 166) in which it was held that, when deciding whether to strike out proceedings the Court should not adjudicate on questions of fact or controversial legal issues raised by the proceedings but must confine itself to considering whether or not the issues raised are frivolous or obviously unsubstantial.  In the light of that decision, Mr. Geraghty submitted that it would be a travesty of justice were this Plaintiff denied the opportunity of contesting his claim herein.
	While, in the light of the authorities to which I have been referred, I have to admit to having certain reservations about the matter, I think that, on balance, the Plaintiff has an arguable case which is neither frivolous or vexatious.  Accordingly, I am not disposed to dismissing his claim herein.  Neither, however, do I think it appropriate to give judgment in  default in defence. So far as I am concerned, the case will go to a plenary hearing.          	

ne(O'Donov)2