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	Supreme Court of Ireland Decisions
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> O'Connor v. Coady [2004] IESC 54 (21 October 2004) URL: http://www.bailii.org/ie/cases/IESC/2004/54.html Cite as: [2004] IESC 54, [2005] 1 ILRM 256

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THE SUPREME COURT

McGuinness J.

Geoghegan J.

McCracken J.

414/03

IN THE MATTER OF THE VENDOR

AND PURCHASER ACT, 1874

BETWEEN/

MARY O'CONNOR

Plaintiff/Appellant

and

PATRICK COADY

Defendant/Respondent

[Judgments delivered by Geoghegan J. & McCracken J.; McGuinness J. concurred with both.]

JUDGMENT of Mr. Justice Geoghegan delivered the 21st day of October 2004

The background to this appeal is that the appellant sold certain property to the respondent subject to the obtaining of planning permission within four months and with no specific closing date but with the provision that the sale was to be closed within seven days of the granting of the permission. The planning permission was not granted until more than a year after the date of the contract. When the four month period had expired without the permission being granted, neither party initially gave any notice to the other indicating that he or she was treating the contract as at an end. At a time, however, when it appeared that planning permission was shortly going to issue the respondent became active and through his solicitor made suggestions as to how the sale would proceed. This letter was responded to by the solicitors for the appellant in a letter headed "subject to contract/contract denied". They expressed surprise at the contents and asserted that the contract had lapsed after the four months period. The same solicitors suggested that there was, therefore, no longer any contract but that their client would be willing to renegotiate a new contract at a new price. The respondent displayed indignation at this response on the alleged basis that all the indications had been that the appellant was treating the contract as still alive and indeed the deposit had never been returned. The respondent, accordingly, launched specific performance proceedings in the Circuit Court. The appellant thereupon instituted these proceedings in the High Court under the Vendor and Purchaser Act, 1874. The special endorsement of claim on the Special Summons sought clarification from the court on three questions (the third of which is not now regarded as relevant). That special endorsement of claim subsequently became amended by the addition of further questions. In its original form the two relevant questions were as follows:

1. Was the plaintiff entitled to rescind the contract dated the 31st May following the failure of the defendant to comply with the special condition on obtaining planning permission by the 30th September, 2001?

2. Did the plaintiff in fact validly rescind said contract of the 31st May, 2001?

For reasons which I will be developing further in this judgment, I believe that those were the relevant questions and that it is somewhat unfortunate that unnecessary confusion was introduced into the case by the additional questions in the amended special endorsement of claim. Those additional questions were as follows:

"3. Was the plaintiff under the said contract entitled to regard the said contract as being at an end when the provisions in relation to the obtaining of planning permission within the time limit prescribed were not complied with, in that the said planning permission did not issue?

4. Was it incumbent upon the plaintiff, being the vendor under the said contract, to notify the defendant, being the purchaser, that the said contract was at an end?

5. The said contract being conditional upon the said issue of planning permission did the plaintiff, being the vendor under the same, either expressly or by implication do any act or thing as would have indicated to the purchaser that they were waiving the requirement of compliance with the said condition or otherwise indicating that she was treating the said contract as unconditional?

6. Was the defendant, being the purchaser under a conditional contract entitled to assume in the absence of the said condition being fulfilled as therein provided that the plaintiff being the vendor, had waived the said condition or that the contract had otherwise become unconditional or otherwise enforceable."

The case came for hearing before Carroll J. and she delivered a reserved judgment on the 12th November, 2003. The effect of the answers which she gave to the questions was that the respondent succeeded in his contention that there was still a subsisting contract.

It would seem to me that the reasoning of Carroll J. was based on the arguments and agreed parameters of the case put before her by counsel which were more or less repeated at the hearing of the appeal before this court. For instance, the learned trial judge states in her judgment that the vendor submitted firstly that the condition about planning permission was a condition precedent, "in which case no contract came into existence". It would seem to me that to quite an extent, even before this court, counsel on both sides accepted that there was a relevant issue as to whether the condition was a "condition precedent" or a "condition subsequent". For reasons which I will elaborate on, I do not consider that that distinction is either particularly relevant or particularly helpful.

Of the many cases included in the book of authorities the one which the learned trial judge found most relevant was Sepia Limited v. M. and P. Hanlon Limited [1979] I.L.R.M. 11, a decision of Costello J. I would respectfully differ from the learned trial judge in the degree of relevance that she attached to that case which would seem to me to be quite different in a number of respects. In the Sepia case there had been a contract of sale subject to the granting of planning permission. There was no time limit on the condition as to planning permission but there was a specified closing date in connection with which it had been made clear that time was of the essence and in the context that the planning permission had to be obtained before the closing date. A second contract was then entered into relating to separate property and containing no condition as to planning permission but amending also the first contract the end result of which was that there was a common closing date in respect of which for the reasons given by Costello J. time was not of the essence. Since there was only a non-essential closing date and no express time limit on the planning condition, clearly the only relevant date could be a date created by a notice making time of the essence. Costello J., however, pointed out at p. 24 of the report that in the case of the first contract if the purchaser did not waive the special condition relating to planning permission that contract "would come to an end at the expiration of the notice (the condition relating to planning permission not having been complied with)" and the learned judge cites Smith v. Butler [1900] 1 QB 694; and Aberfoyle Plantation Limited v. Cheng [1960] AC 115 (a case relied on by the appellant on this appeal). If anything, that sentence, in my opinion, is more helpful to the appellant than to the respondent but I do not think that Costello J's words should be interpreted as his having expressed any view as to whether in the case of a conditional contract, if the condition fails there is a self-executing termination of the contract or on the other hand if one of the parties has to indicate that he or she is treating it as at an end. It will emerge later in this judgment that I favour the latter view and in so doing, I am satisfied that I am in no way differing from any views expressed by Costello J. I do not think that he addressed that question at all as it did not arise.

Returning to the case at hand, the position, as I see it, is that although a helpful book of authorities has been furnished to the court none of the cases are directly in point to the precise questions that arise here. It is important, however, to note that whatever answers may be arrived at by this court to the questions raised in the summons it does not necessarily follow that they can be transported to some other future case in which a planning permission condition or some similar condition is inserted. In every case, as to what is to happen in the event of a condition not being fulfilled is first and foremost a matter for agreement between the parties. The courts will uphold any lawful agreement in this connection. Such agreement may be expressed or implied. If, however, there are no express provisions and if there are no concrete outside circumstances which would raise particular implications there are principles which a court can lay down as applicable in interpreting what the implied agreement of the parties is.

The important principles in this connection were in fact laid down by the Privy Council in Aberfoyle Plantations Limited v. Cheng cited above, principles which in whole or in part have been referred to in Irish cases as well as Australia, New Zealand, Northern Ireland and other English cases. Lord Jenkins (who sat with Lord Denning and the Rt. Hon. L.M.D. de Silva) in giving the advice of the Board laid down the following principles as applicable subject of course to different arrangements having been agreed between the parties.

"(i) Where a conditional contract of sale fixes a date for completion of the sale, then the condition must be fulfilled by that date;

(ii) Where a conditional contract of sale fixes no date for completion of the sale then the condition must be fulfilled within reasonable time;

(iii) Where a conditional contract of sale fixes (whether specifically or by reference to the date fixed for completion) the date by which the condition is to be fulfilled, then the date so fixed must be strictly adhered to and the time allowed is not to be extended by reference to equitable principles."

The decision of the Privy Council in Aberfoyle has always been controversial but only in one respect. On one interpretation of the opinion delivered by Lord Jenkins (I put it this way because there are hugely varying interpretations as to what he did in fact mean) the condition in that case was treated as a condition precedent in the sense of a condition precedent to the coming into existence of the contract. But as far as I can understand from the case law both in this jurisdiction, in Northern Ireland, in England, in Australia and New Zealand there is no judicial controversy as to the principle that if a time limit is specified in such a condition, then, in the absence of agreement to the contrary it is non-extendable. Not only was this principle accepted by Costello J. in Sepia as referred to above but it was also acknowledged by McWilliam J. in Maloney v. Elf Investments Limited (unreported judgment in the High Court delivered 7th December, 1979). Speaking in the context of waiver of the condition which of course does not apply here, McWilliam J. at p. 8 of the judgment said that he was of opinion that "in the absence of any other authority, that the decision in the Aberfoyle case as to the necessity for exact compliance with the date mentioned in the condition means that there can be no question of waiver after that date has passed." Again in reliance on Aberfoyle Murray J. in the Northern Ireland case of McKillop v. McMullan [1979] N.I. 85 at 92 appears to endorse the view that where there was a specified completion date and the contract was subject to planning permission that date had to be adhered to for fulfilment of the condition. In this non-controversial respect Aberfoyle has been followed also in judgments delivered in the High Court of Australia in Perri v. Coolangatta Investments Property Limited (1982) 149 CLR 537. In relation to all aspects of this case I have gained considerable assistance from the judgments in that Australian case and I will be returning to them. It is of some passing interest to note that the five judge court comprised three judges all of whom are now former Chief Justices of the High Court of Australia and each of whom delivered written judgments. The court consisted of Gibbs C.J., Stephen, Mason, Wilson and Brennan JJ.

The judgment of Kenny J. in Healy v. Healy (unreported judgment 3rd December, 1973) deals with the question of waiver and is not of any real assistance in this case except that by way of obiter dicta Kenny J. throws out the suggestion that where, as in this case, the closing date is fixed by reference to the grant of the planning permission under the condition and where no planning permission has in fact issued by the date the so called contract without the obligation to comply with the condition might be void for uncertainty. It would seem to me that a court would be slow to come to that conclusion unless it was absolutely compelled to do so. Fortunately the question does not arise to be determined on this Vendor and Purchaser summons.

I am of the view, for the reasons which I have indicated, that once the date mentioned in the condition had passed without the planning permission being available there was an entitlement to bring the contract to an end. I put it that way because I do not accept (and it is clear from the judgment of Carroll J. that counsel for the appellant in the High Court was in agreement on this) that the contract automatically came to an end. It was capable of being brought to an end by notification from one party to the other. I cannot agree with the learned High Court judge that a twenty eight day notice under the contract would have to be served. Indeed the clause in the form of Law Society contract used requiring in certain circumstances a twenty eight day notice is not drafted so as to cover the situation which arose here.

There is no doubt that the condition was not fulfilled within the prescribed time but the question is, did the appellant effectively bring the contract to an end?

It is at this point that it is helpful and relevant to summarise the relevant facts. The relevant condition read as follows:

"The contract herein is subject to the purchaser, his servants or agents obtaining Final Grant of Planning Permission for the residential development applied for by him, his servants or agents on the property at sale herein and after conclusion of all appeals (if any) within 4 months of the date hereof."

It is that "special condition" which rendered the contract a "conditional contract" an expression to which I will return. A subsequent "special condition" read as follows:

"The closing date herein shall be 7 days after issue of the Final Grant of Planning Permission referred to at special condition 4 above."

It is clear from the correspondence exhibited that the contract had been drawn up about two months before it was actually signed and had originally inserted a six month period which because of the delay was altered to four months. The closing date suggested by the purchaser of four weeks after the issue of the planning permission was altered to seven days on the insistence of the respondent. The only significance of those negotiations is that they clearly negative any suggestion that the time limit on the condition was not intended to be essential. There is quite clearly nothing therefore to negative the general law on this as enunciated in Aberfoyle.

The subsequent events were in many ways strange and remain unexplained. A perfectly sensible letter was written on the 23rd August, 2001 by Patrick Tallan and Co., solicitors for the appellant to Richard Dennehy and Co. the solicitors for the respondents. The letter noted that the solicitors for the vendor had not heard from the other solicitors for some time in relation to the planning application and asked for information as to the status thereof and as to when the purchaser would be in a position to complete. The affidavit of the appellant states that that letter elicited no reply or information. However, this is disputed in a replying affidavit of the respondent in which he says that it is incorrect to assert that the appellant received no reply or information from the respondent regarding that query contained in the letter. He says that he is instructed by his solicitor that the solicitor telephoned the appellant's firm in or about 19th September, 2001 and advised Ms. Brenda Rushe of that firm that he was not in a position to confirm the planning application as he had difficulties contacting his clients who were out of the country on business at that time and further advised her that he was not in a position to confirm matters in writing due to a family bereavement. It is stated that the solicitors suggested to Ms. Rushe that she should request her clients to call into the offices of C. and M. Holdings Limited in Ashbourne to speak to either a Mr. Gerard Foran or himself as to the current status of the planning permission. In the event, whether this happened or not is not particularly relevant because it appears that no further correspondence passed between the parties until September, 2002. The first such letter came from Richard Dennehy and Co. to Patrick Tallan and Co. and was dated the 3rd September, 2002. It read as follows:

"Dear Sirs

We refer to the above and our recent conversation regarding the same.

We now understand that planning permission issued in June of this year. However an appeal was lodged and this appeal is pending hearing in September or October of this year.

Our clients are confident that the appeal will not cause difficulty to them.

Further to the same and to enable completion can you please reply to our requisitions on title which were forwarded on the 26th June, of last year and confirm that our draft transfer deed is approved.

Yours faithfully"

There was a follow up letter of the 11th September requiring a Residential Property Tax Clearance Certificate and a Capital Gains Tax Clearance Certificate but nothing turns on that since the letter of the 3rd September was replied to by Patrick Tallan & Co. by a letter of the 12th September, 2002. It is important that I should quote this letter in full. It reads as follows:

"Subject to contract/contract denied

Re: Your client: Patrick Coady

Our client: Mary O'Connor, lands at Castle Street,

Ashbourne, Co. Meath

Dear Sirs

We acknowledge receipt of your letter of the 3rd inst. And were most surprised at the contents. As you are aware, under the terms of the contract, this contract has lapsed and is at an end.

Without prejudice, however, our clients will be prepared to renegotiate terms for the sale of the property and if your client wishes to make an offer perhaps you would let us hear from you at your earliest possible convenience.

In order to finalise matters we return herewith deposit in the sum of €57,138.21 (£45,000).

In the meantime, of course, we have no authority to bind our clients in this or any related correspondence and they will not be so bound until formal contracts have been executed by them and a full deposit paid. We are not agents within the meaning of the Statute of Frauds.

Yours faithfully"

A number of points are worth noting from this letter. First of all it is not a letter expressly purporting to rescind the contract. On the face of it, it is simply expressing surprise on the basis that the contract had lapsed once the date on the condition had passed. It is necessary, however, to look at the substance and not the mere form of the letter. There is no doubt that the letter is making clear that the vendor does not regard herself as bound by the contract. The denial of contract at the head of the letter copper fastens that view. Once the condition was not fulfilled within the correct time either party was entitled to treat the contract as at an end but was bound to notify the other party that he or she was so treating it. Once such notification in whatever form took place there was no longer a contract unless the party purporting to treat the contract as at an end had in fact expressly or impliedly affirmed the contract. Mere lapse of time would not necessarily constitute such affirmation, there would have to be some positive indication that the party otherwise entitled to rescind was treating the contract as still in being. Although time was allowed to elapse in this case no such affirmation took place and, therefore, this voidable contract was effectively avoided or rescinded by the letter of the 12th September, 2002.

As I have already pointed out, counsel for the appellant has not argued in either court that the contract automatically came to an end. On one view this concession was surprising in the light of the terms of the letter of the 12th September, 2002 in which the case of automatic lapse was made. I agree with the views of McCracken J. that the issue of automatic lapse does not arise but, for reasons which I will be indicating, my present view at any rate, would be that such a conditional contract is voidable and not void on the non-fulfilment of the condition.

The second point to be noted from the letter of the 12th September, 2002 is the phrase "in order to finalise matters" preceding a statement that they were returning the deposit. The deposit was not in fact enclosed. However, as McCracken J. points out in his judgment it appears to be accepted that this was an oversight. The non-return of the deposit therefore is not inconsistent with the rescission.

If I am right in my view that the time limit on the condition would not be self-executing and that an act of rescission would be required, the basis for such requirement must be considered as flowing from the implied agreement of the parties. Obviously such rescission cannot be effective after a positive affirmation of the contract.

In fairness to the parties on both sides of this case and their legal advisers, the questions raised are not without difficulty and have not really been considered before by the Irish courts. Analogous questions, however, have been considered in the Australian case of Perri referred to above. I do not intend to go into the facts of that case in too much detail. The condition involved was not a planning permission condition though other Australian cases involving such a condition are considered throughout the judgments in the context of their relevance. The condition in the Perri case was that the contract was being entered into subject to the purchasers completing a sale of certain other properties. No express time limit was fixed for the performance of the condition but it was held, as would be held in these courts, that it had to be complied with within a reasonable time. Nor was there an express completion date. Despite the differences in the factual background the observations of the judges were in many instances highly relevant to this case. First of all, a number of the judgments dealt with the distinction between condition precedent and condition subsequent. Both counsel in this case and, I think by implication, the learned trial judge considered that distinction relevant. But the Australian judgments and references to other cases and articles contained therein dealing with that distinction have convinced me that it is not really a helpful one. On the hearing of the appeal before this court, counsel for the appellant, Mr. O'Dwyer, S.C. and counsel for the respondent, Mr. Ralston, S.C. seemed to assume that the expression "condition precedent" necessarily and exclusively refers to a condition the effect of non-compliance with which means that no contract of any kind comes into existence. They seemed to take the view that every other kind of a condition that might be said to render the contract "conditional" was a condition subsequent. Gibbs C.J. in the Perri case considered that the completion of the sale of the other property was a "condition precedent to the performance of certain of the obligations of the parties under the contract including the obligation of the respondent to complete the sale." He goes on to make the following observation:

"It has sometimes proved difficult to decide whether a particular condition of a contract should be classified as a condition precedent or a condition subsequent, and as Professor Stoljar has pointed out in 'the contractual concept of condition' Law Quarterly Review Volume 69 (1953) 485 at p. 506 if the words 'precedent' and 'subsequent' are to make sense they must be connected with a definite point of reference since they express a relationship in time, the question which must be asked is 'precedent to what? Subsequent to what?'. However, provided the effect of a condition is clearly understood, its classification may be merely a matter of words. The condition in the present case was not a condition precedent to the formation of a binding contract (my emphasis). It is clear that a binding contract came into existence immediately upon signature, and that the parties to it were from that moment subject to certain obligations."

Referring to a passage in a judgment of Isaacs J. in another Australian case Maynard v. Goode (1926) 37 CLR at 540 he agrees with Isaacs J. in pointing out that

"In one sense the stipulation might be a condition precedent to the performance of a particular term of the contract, while in another sense it was a condition subsequent in relation to the whole contract, since the failure of the stipulation would have entitled the vendor to retire from the transaction altogether."

He goes on to refer to other cases in which it was pointed out the problems of making any relevant distinction between condition precedent and condition subsequent. Mason J. deals with the topic in similar vein in his judgment. He points out that generally speaking the court will tend to favour the construction which leads to the conclusion that a particular stipulation is a condition precedent to performance as against that which leads to the conclusion that the stipulation is a condition precedent to the formation or existence of the contract. He points out that in most cases it is artificial to say in the face of the details settled upon by the parties that there is no binding contract unless the event in question happens. This view exactly corresponds with the view expressed by McWilliam J. in O'Mullane v. Riordan [1978] I.L.R.M. 73 at 77 where he said the following:

"The price of the land has increased astronomically since May 1972 and it has been argued that, as this contract was subject to a condition (i.e. the obtaining of planning permission) there was no contract until the planning permission had been obtained and that this is the time at which I have to ascertain the value of the land for the purpose of establishing the fairness of the bargain. I was referred in this context to the case of Aberfoyle Plantations Limited v. Kajw Bien Cheng [1960] AC 115. I cannot accept this argument. The fact that a contract is subject to a condition has the effect of making it unenforceable until the condition is fulfilled, but it does not mean that there is no contract at all and the case cited decided that the purchaser was entitled to recover his deposit under a term of the agreement. A conditional contract is one which becomes enforceable provided the condition is fulfilled within the time provided by the contract or if no time is provided within a reasonable time."

I think that this was the view adopted also by Murray J. in the Northern Ireland case of McKillop cited above notwithstanding the adverse views on that case expressed by the learned High Court judge.

Returning to the Perri case and moving to the judgment of Wilson J. he refers to a passage in the judgment of the well known New Zealand judge, Cooke J., in a case called

Hunt v. Wilson (1978) 2 NZLR 261 at 267 in which that judge said the following:

"I venture to think that the ambiguous labels precedent and subsequent when applied to conditions are seldom of real help in solving issues in this branch of contract law. Certainly they can be positively misleading unless the meaning of what has been said is made specific by explaining to what the condition in question is seen as precedent or subsequent".

Wilson J. goes on to agree with that view and to point out that the special condition in the Perri case could be described with accuracy as either a condition subsequent to the formation of the contract or is a condition precedent to an obligation in either party to proceed to completion. These views as to the respective meanings of "condition precedent" and "condition subsequent" and as to their frequent overlap were endorsed in the judgment of Brennan J. with which Stephen J. agreed.

In my view, the more helpful terminology is the distinction between a "conditional contract" and an "unconditional contract". As we all know, by a strange quirk of the law, ordinary terms of an unconditional contract if they are of sufficient importance will themselves be described as "conditions" but that does not mean that the contract is conditional. Normally, a conditional contract will not mean a contract which only comes into existence upon fulfilment of the condition but rather a contract which can only be enforced upon fulfilment of the condition. That is what this contract was.

As I have explained, it has already been conceded that the contract did not automatically lapse upon the breach of condition. Although not all of the views of the judges in the Perri case on this point fully coincided, I think that the case can be read as supporting that concession. But if the contract does not automatically "lapse" to use the terminology contained in the letter from the solicitors for the appellant, how does it come to an end? That is the question which now has to be explored in more detail and on that question also there was no real assistance to be gained from any of the authorities in the book of authorities but I did find assistance from the judgments in the Perri case. Gibbs C.J. in paragraph 10 of his judgment said the following:

"For these reasons I consider that when the time has elapsed for performance of a condition which is not a promissory condition, but a condition precedent to the obligation to complete a contract of sale, either party, if not in default, can elect to treat the contract as at an end if the condition has not been fulfilled or waived and that it is not necessary first to give a notice calling on the party in default to complete the contract or fulfil the condition."

Later in the same paragraph the same judge says the following:

"Although in Aberfoyle Plantations Limited v. Cheng … an erroneous view may have been taken of the nature of the condition there considered, nevertheless, in my respectful opinion, it was correct to hold that the time fixed by the contract for performance of the condition was not to be extended by reference to equitable principles, …"

But in paragraph 11 the same judge also observes:

"In the view that I have formed, it was then open to the respondent to avoid the contract without first giving any notice limiting a reasonable time for completion. By instituting the proceedings, before the condition had been either fulfilled or waived the respondent sufficiently evidenced its election to avoid the contract."

I should point out that these views expressed by Gibbs C. J. were in the context of his approving similar views expressed in other Australian cases and in particular the following passage expressed in a case of Gange v. Sullivan (1966) 116 CLR 441:

"Whilst the effect of a condition must in every case depend upon the language in which it is expressed and a decision upon the meaning of one condition cannot determine the meaning of a different condition, the authorities cited do show a disposition on the part of the courts to treat non-fulfilment of a condition such as that here under consideration as rendering a contract voidable rather than void in order to forestall a party to a contract from gaining some advantage from his own conduct in securing or contributing to the non-fulfilment of a condition bringing the contract to an end. Accordingly … we are prepared to treat the non-fulfilment of the condition as rendering the contract voidable rather than void."

Mason J. also makes it clear that, in his view, the time clause would not be self-executing and that the party relying on it would have to rescind. Indeed, that appears to have been the view of all the judges. As there is no authority requiring this court to hold otherwise, I have likewise taken the same view as the Australian courts endorsed in English cases also that non-fulfilment of the condition within the time stipulated renders the contract voidable rather than void. This would seem to me to be especially sensible in the Irish context. I think that two Irish solicitors dealing with each other on a sale would naturally assume that if one was going to treat the contract as at an end because of the breach of the condition he would so inform the other and that it is reasonable to imply such an obligation. This observation is necessarily obiter as the question was not argued in the light of counsel's concession.

I would allow the appeal. I would answer the questions in the manner suggested by McCracken J. in his judgment.

THE SUPREME COURT

414/03

McGuinness J

Geoghegan J

McCracken J

In the Matter of the Vendor and Purchaser Act 1874

Between:

Mary O'Connor

Plaintiff/ Appellant

AND

Patrick Coady

Defendant/ Respondent

Judgment of Mr Justice McCracken delivered the 21st day of October 2004

___________________

The Contract

By a contract in writing dated 31st May 2001 and made between the Appellant as vendor and the Respondent as purchaser the Respondent agreed to purchase the lands comprised in Folio 35939F of the Register of Freeholders County Meath for the sum of £450,000. The contract was subject to a number of special conditions, two of which are relevant to the present dispute. They are:-

"3. The contract herein is subject to the purchaser, his servants or agents obtaining final grant of planning permission for the residential development applied for by him, his servants or agents on the property at sale herein and after conclusion of all appeals (if any) within four months of the date hereof."

"6. The closing date herein shall be seven days after the issue of the final grant of planning permission referred to at special condition four above."

Quite clearly the reference in the latter special condition ought to be to special condition three as quoted above.

The general conditions of the contract were those contained in the Incorporated Law Society of Ireland General Conditions of Sale (1995) edition. These contained a provision regarding completion notices, the relevant portions of which are:-

"40. Save where time is of the essence in respect of the closing date, the following provisions shall apply:-

(a) If the sale be not completed on or before the closing date either party may on or after that date (unless the sale shall first have been rescinded or become void) give to the other party notice to complete the sale in accordance with this condition, but such notice shall be effective only if the party giving it shall then either be able, ready and willing to complete the sale or is not so able, ready or willing by reason of the default or misconduct of the other party.

(b) Upon service of such notice the party upon whom it shall have been served shall complete the sale within a period of twenty-eight days after the date of such service (as defined in condition 49 and excluding the date of service), and in respect of such period time shall be of the essence of the contract but without prejudice to any intermediate right of rescission by either party."

Subsequent Actions of the Parties

At the date of the contract the Respondent had already applied for planning permission, which application included both the lands in sale and other adjoining lands the property of the Respondent, however no planning permission issued within the four month period referred to in special condition (3). By letter dated 23rd August 2001 the Appellant solicitor inquired as to the status of the planning application and as to when the Respondent expected to be in a position to complete the contract. There is some dispute as to whether there was a verbal response to this letter but that is not really relevant to these proceedings, and it is common case that no further correspondence took place on either side until over a year later, long after the four month period had expired.

On 3rd September 2002 the Respondent solicitor wrote to the Appellant solicitor in the following terms:-

"Re: Your client Mary O'Connor

Our client Patrick Coady

Lands at Castle Street, Ashbourne, County Meath

Dear Sirs

We refer to the above and our recent conversation regarding the same.

We now understand that Planning Permission issued in June of this year. However an Appeal was lodged and this Appeal is pending hearing in September or October of this year.

Our clients are confident that the Appeal will not cause difficulty to them.

Further to the same and to enable completion can you please reply to our requisitions on title which were forwarded on the 26th June of last year and confirm that our Draft Transfer Deed is approved."

This was replied to by the Appellant's solicitors by letter of 12th September 2002 headed "SUBJECT TO CONTRACT/ CONTRACT DENIED".

The letter read:-

"Re: Your client Patrick Coady

Our client May O'Connor

Lands at Castle Street Ashbourne County Meath.

Dear Sirs

We acknowledge receipt of your letter of the 3rd inst. and were most surprised at the contents. As you are aware, under the terms of the Contract, this Contract has lapsed and is at an end.

Without prejudice, however, our clients would be prepared to re-negotiate terms for the sale of the property and if your client wishes to make an offer, perhaps you would let us hear from you at your earliest possible convenience.

In order to finalise matters, we return herewith deposit in the sum of €57,138.21 (IR£45,000).

In the meantime, of course, we have no authority to bind our clients in this or any related correspondence and they will not be so bound until former contracts have been executed by them and a full deposit paid. We are not agents within the meaning of The Statute of Frauds.

Yours faithfully"

Due to what appears to be accepted as an oversight the deposit was not in fact enclosed with that letter, but was returned shortly afterwards. On 20th September 2000 the Respondent lodged a caution in the Land Registry. Planning Permission was ultimately granted by An Bord Pleanala on 4th October 2002. On 19th November 2002 the Respondent issue specific performance proceedings in the Circuit Court. These present proceedings were issued by the Appellant on 11th November 2002.

The Relief Sought

The initial special summons issued by the Appellant sought the decision of the Court pursuant to the provisions of the Vendor and Purchaser Act 1874 of the following matters:-

"Was the plaintiff entitled to rescind the contract dated 31st May following the failure of the defendant to comply with the special condition on obtaining planning permission by the 30th September 2001.

Did the plaintiff in fact validly rescind the said contract of the 31st May 2001.

Is the defendant entitled to register the said caution in the Land Registry."

The latter point did not in fact become an issue in these proceedings, but the special summons was subsequently amended by the addition of the following queries:-

"Was the plaintiff under the said contract entitled to regard the said contract as being at an end when the provision in relation to the obtaining of planning permission within the time limit prescribed was not complied with, in that the said planning permission did not issue?

Was it incumbent upon the plaintiff, being the vendor under the said contract, to notify the defendant, being the purchaser, that the said contract was at an end?

The said contract being conditional upon the said issue of planning permission, did the plaintiff, being the vendor under the same, either expressly or by implication to any act or thing as would have indicated to the purchaser that they were waiving the requirement of compliance with the said condition or otherwise indicating that she was treating the said contract as unconditional?

Was the defendant, being the purchaser under a conditional contract entitled to assume in the absence of the said condition being fulfilled as therein provided that the plaintiff, being the vendor, had waived the said condition or that the contract had other wise become unconditional or otherwise enforceable?"

Decision of the High Court

The summons came for hearing before Carroll J and by her judgment dated 12th November 2003 she answered the queries raised in the amended summons as follows:-

"1 The plaintiff was entitled to rescind the contract following the failure of the defendant to obtain planning permission by 30th September 2001 provided she served a completion notice under clause 40 of the General Conditions of Sale and if the defendant failed to comply with the notice.

2 The plaintiff did not in fact validly rescind the contract of 31st May 2001.

3 The plaintiff was not entitled to regard the contract as being at an end when the planning permission was not obtained within the time prescribed by the contract.

4 The plaintiff was not entitled to notify the defendant that the contract was at an end when planning permission was not obtained within the time prescribed by the contract.

5 & 6 The plaintiff did not indicate to the defendant that she was waiving the requirement of compliance with the condition relating to the issue of planning permission. It was the defendant who had the right to waive this condition not the plaintiff. The contract did not become unconditional or otherwise unenforceable."

In her judgment the learned trial Judge partially relied on the decision of Costello J (as he then was) in Sepia Ltd and Opal Ltd v. M & P Hanlon Ltd and Seaborn Ltd [1979] ILRM 11. Having quoted a passage from the judgment in that case, she said at page six of her judgment:-

"In my view the construction given by Costello J to the first contract must equally be applied to the contract in this case. Time was not made of the essence of the contract when the closing date was fixed. After the purchaser was in default in closing the sale on the day fixed, then in order to bring finality to the contract the vendor would have to serve a notice making time of the essence of the contract under clause 40 of the General Condition of Sale. At the end of the period of 28 days provided for in clause 40, if planning permission had been obtained, the purchaser was bound to complete. If planning permission had not been obtained, the purchaser could waive the provision and complete the sale. If the purchaser did not waive the condition then the contract would come to an end at the expiration of the notice.

The vendor was not entitled to say in this case that the contract was at an end and return the deposit, just because the planning permission had not then come through within the time limited by the contract.

It was essential that a completion notice under clause 40 of the general conditions be served and that the time fixed by the notice should have elapsed without completion, before the vendor could treat the contract as at an end."

I am afraid I cannot agree with this construction of the contract. Clause 40 of the General Conditions of Sale relates expressly to the completion of the sale and not to compliance with a condition. In fact, under that clause a 28 day notice cannot be served until after the closing date has passed. Under the present contract the closing date was seven days after the granting of planning permission, and therefore it is clear that no notice could be served until after the condition had been complied with and planning permission had been granted. However, it is true to say that in relation to the time limit for compliance with the condition, there was no express provision that time should be of the essence of the contract. It is therefore arguable that, after the time limit had expired, it was necessary for the Appellant to serve a notice making time of the essence of the contract, and giving a reasonable period within which the condition was to be complied with.

The Nature of the Condition

Both before the learned trial Judge and at the hearing of this appeal there was considerable discussion as to whether the condition relating to planning permission was a condition precedent or a condition subsequent. The distinction may at times be of considerable importance, in that if there is a condition precedent, then no contract comes into existence unless the condition is fulfilled, while if there is a condition subsequent, there is a valid contract in being, but it is not enforceable unless the condition is fulfilled. However, the distinction does not seem to me to be relevant in the present case. The real issue in this case is not whether a contract ever existed, but whether the terms of the contract can be enforced once the time for compliance with the condition has passed.

Effect of the Condition

The important features of this condition are, firstly that it relates to a planning application which was already in existence, secondly there was a fixed period for compliance with the condition and thirdly time was not made of the essence of the contract in relation to that period. The general principles relating to conditional contracts were laid down expressly and succinctly by Lord Jenkins giving the judgment of the Privy Council in Aberfoyle Plantations Ltd v. Cheng [1960] AC 115. After pointing out that the intention of the parties as expressed in the contract ought to be implied from the language used therein was all important, he said at page 124:-

"But, subject to this overriding consideration, their Lordships would adopt as warranted by authority and manifestly reasonable in themselves, the following general principles: (I) Where a conditional contract of sale fixes a date for the completion of the sale, then the condition must be fulfilled by that date; (II) Where a conditional contract of sale fixes no date for completion of the sale, then the condition must be fulfilled within a reasonable time; (III) Where a conditional contract of sale fixes (whether specifically or by reference to the date fixed for completion) the date by which the condition is to be fulfilled, then the date so fixed must be strictly adhered to, and the time allowed is not to be extended by reference to equitable principles."

While that case did not refer to a planning condition, nevertheless the principles enunciated have since been adopted as being applicable to planning conditions.

The condition in the present case clearly comes within the principles set out at (III) cited above.

In an earlier case, cited in the Aberfoyle Plantations Limited case, somewhat similar views were expressed by Maugham J. In In Re Sandwell Park Colliery Company [1929] 1 CH 277 a contract was subject to what was admittedly clearly a condition precedent, namely the approval of the Court. At page 282 Maugham J stated as a general principle:-

"Courts of equity, in dealing with actions for specific performance relating to land, have been accustomed to give effect to the real intention rather than to the precise words fixing the date for completion. The effect is that a clause fixing the date for completion is equivalent to a clause stating that completion shall be on that date or within a reasonable time thereafter. But there is no ground for a similar construction in the case of a condition upon which the validity of the contract as one of sale depends. The distinction is obvious. In the first case both parties are bound, and a moderate delay in completion is thought not to injure either. In the latter, the very existence of the mutual obligations is dependent on the performance of the condition. The purchasers do not know in the first instance if their purchase money will ever be required. In general, and in the present case, there is no promise or undertaking by the vendor that the condition will be fulfilled. Equity has, I think, never applied its liberal views as to time to such a condition. If a date is mentioned, the condition must be exactly complied with. If a date is not mentioned, the condition must be fulfilled within a reasonable time; there is no difference between the views of law and equity in considering what is a reasonable time, and the uncertain position of the purchaser must be bore in mind."

While that case concerned a condition precedent and concerned a condition to be performed by the vendor rather than the purchaser, in my view the same principles apply to the present case. Whether this is a condition precedent or a condition subsequent, the existence of the mutual obligations, or their enforcement, is dependant on the performance of the condition. There is no undertaking by the purchaser in this case that the condition will be fulfilled, and the vendor does not know whether he will ever get his money.

The effect of a conditional contract has been considered in several Irish cases since the Aberfoyle Plantations Limited case. In O'Mullane v. Riordan [1978] ILRM 73 McWilliam J implicitly refused to accept that a planning condition was a condition precedent to the coming into operation of a contract, and said at page 77:-

"The fact that a contract is subject to a condition has the effect of making it unenforceable until the condition is fulfilled, but it does not mean that there is no contract at all and the case cited (the Aberfoyle Plantations Ltd case) decided that the purchaser was entitled to recover his deposit under a term in the agreement. A condition contract is one which becomes enforceable provided the condition is fulfilled within the time provided by the contract or, if no time is provided, within a reasonable time."

Similarly in Maloney v. Elf Investments Ltd (Unreported 7th December 1979) McWilliam J expressly rejected the argument that by analogy with the date fixed for closing, the time fixed in a contract for performance of a condition in relation to planning should be regarded in equity as the date fixed in the contract or a reasonable time thereafter unless time had been made of the essence of the contract. He expressly approved the third proposition in the Aberfoyle Plantations Limited case.

In Sepia Ltd & Anor v. M & P Hanlon Ltd & Anor [1979] ILRM 11 the effect of a planning condition was also considered. The facts of the case were somewhat complicated by the fact that there were two contracts involved, but the first contract contained a special condition which read:-

"(11) The contract is subject to the purchaser obtaining planning permission to develop the property the subject matter of the sale, which permission the purchaser shall apply for and take all proper steps to obtain with all reasonable speed, but nothing herein shall be deemed to effect the provisions of special condition number 8 herein."

That there was no specific date by which the planning permission was to be complied with but condition 8 expressly made time of the essence of the contract in relation to the completion of the sale. In considering the effect of this, Costello J said at page 24:-

"In the first contract the parties had expressly made time of the essence of the contract when they provided that the sale was to be closed on 1 May 1975. Condition 11 relating to planning permission must be interpreted in the light of the necessity strictly to observe the date set for closing. The result is, in my opinion, that if the plaintiffs had failed to obtain planning permission by 1 May 1975 and if the closing date was not extended by mutual agreement then the defendants were entitled to treat the contract as at an end if the plaintiffs refused to complete: the absence of planning permission would not have excused the non performance by the plaintiffs of the contract."

This was a case which came within the first proposition in the Aberfoyle Plantations Limited case, and is in accordance with that decision.

Finally, in the Northern Ireland case of McKillop v. McMullen [1979] NI 85 the Aberfoyle Plantation Limited case was expressly approved.

Strangely enough, there does not appear to be any case in which the Aberfoyle Plantations Limited decision was considered by this Court. However, it has been approved and followed in England, Australia and New Zealand. It appears to me to be a correct analysis of the legal position of conditions inserted in a contract which postpone the enforceability of the contract, be they conditions precedent or conditions subsequent. These propositions are clearly particularly applicable to conditions relating to the obtaining of planning permission, and indeed to any condition to where the time required for its performance is uncertain. Particularly in contracts for the sale of land, certainty is important to both parties. I am quite satisfied that the effect of the contract in the present case is that at the expiration of the four month period for obtaining planning permission the condition had not been fulfilled and the time allowed for its fulfilment could not be extended by reference to equitable principles.

The Effect of Non Compliance

Somewhat surprisingly the Appellant has not sought to argue that the contract came to an end immediately on the expiration of the four month period allowed for fulfilment of the condition. Indeed, the wording of the questions in the summons seems to make it clear that the Appellant considers that the failure to comply with the condition rendered the contract voidable rather than void. In my view there is certainly an argument to be made that where there is a fixed date by which there must be completion of a condition, the contract automatically becomes void on the failure to comply with the time limit. However, that is not an argument which this Court has been asked to consider, nor is it one raised on the pleadings, and accordingly, expressly without deciding the point, for the purposes of this decision I am assuming that the contract became voidable.

The letter of 12th September 2002 from the vendor's solicitors did not opt to avoid the contract in express terms. It did state, rightly or wrongly, the belief and contention of the Appellant's solicitor at the time that the contract had lapsed "and is at an end". It offered to enter into negotiations for a new contract and it purported to return the deposit. Perhaps more importantly it was headed "Subject to Contract/ Contract Denied". In my view this letter in unequivocal terms notified the Respondent solicitor that the Appellant was treating the contract as being at an end. In the absence of any express contractual provision, the rescission of a voidable contract does not have to be in any particular form. What is required is a clear notification that the relevant party is treating the contract as at an end. In my view this letter clearly complies with that requirement.

The only question, therefore, is whether the Appellant's right to avoid the contract became lost due to the passage of time, either by reason of the Appellant's delay in taking any action or by reason of the waiver of the condition by the Appellant. There is no doubt that there are many cases of this nature in which a condition inserted for the benefit of one party, in this case the Respondent, can be waived by that party, but that requires some positive act by that party. The fact that the Respondent in the present case continued his planning application and made no attempt to notify the Appellant that he was prepared to complete without the condition being fulfilled, seems to me to make it quite clear that the Respondent always considered that the condition remained. Indeed, the Respondent's solicitor's letter of 3rd September, which brought matters to a head, was written on the basis that the condition remained, but was shortly going to be complied with. Accordingly, in my view no question of waiver can arise.

The question of the Appellant's delay might have been very serious had she done anything to encourage the Respondent to believe that she was not going to enforce the time limit attached to the condition. It could then possibly be argued that the situation amounted to an estoppel. However, there is no suggestion of anything of that nature in the present case. The Appellant simply did nothing until the Respondent notified her solicitor that the planning permission was shortly going to issue. The most that could be said is that her solicitor held the deposit, which of course belonged to the Respondent. On the other hand, the Respondent never requested the return of the deposit, and there is no suggestion that the Appellant personally benefited in any way from it being held by her solicitor. In those circumstances, I do not consider that the delay in any way effected the Appellant's right to avoid the contract.

Conclusion

In the circumstances of this case I would allow the appeal. I am doing so on the basis that the contract became voidable on the expiration of the four month period for compliance with the planning condition, that the letter of 12th September 2002 constituted a valid rescission of the contract, and that this rescission took place before the planning condition had been fulfilled and in the absence of any waiver on the part of the Respondent.

I would therefore answer the questions in the summons as follows:-

1 The Plaintiff/ Appellant was entitled to rescind the contract dated 31st May following the failure of the Defendant to comply with the special condition on obtaining planning permission by 30th September 2001.

2 The Plaintiff/ Appellant did in fact validly rescind the said contract by the letter of 12th September 2002.

3 Whether the Plaintiff/ Appellant was entitled to regard the said contract as being at an end when the provisions in relation to the obtaining of planning permission within the time limit prescribed were not complied with, was not argued before this Court.

4 In view of the findings at (2) above, the question of whether it was incumbent on the Plaintiff/ Appellant to notify the Defendant/ Respondent that the contract was at an end does not arise.

5 The Plaintiff/ Appellant did not either expressly or by implication do any act or thing as would have indicated to the purchaser that she was waiving the requirement of compliance with the said condition or otherwise indicating that she was treating the said contract as unconditional.

6 The Defendant/ Respondent was not entitled to assume in the absence of the said condition being fulfilled as therein provided that the Plaintiff/ Appellant had waived the said condition or that the contract had otherwise become unconditional or otherwise unenforceable.