A company formerly linked to developer Johnny Ronan has lost a High Court case over ownership of small parcels of property on Dublin's south docks where a €100m redevelopment is planned, writes Ann O’Loughlin.
In a judgment related primarily to the law on buying out ground rent on a "fee simple" basis, Mr Justice Robert Haughton found it would be wholly unjust not to declare Balark Investments was entitled to the fee simple interest in the property.
The judge also said Balark founder and former director, Greg Kavanagh, was "a generally unreliable witness".
The case centred on part of a property at Sir John Rogerson's Quay which, until the 1960s, was the B&I ferry terminal and which is the site of a planned €100m commercial and residential development. The buildings and land have also been used for filming TV dramas such as "Love/Hate", "Ripper Street" and "Quirke".
The property concerns two rectangular lots fronting the quay, one 256 feet extending southwards and a second, an extension of the first, extending towards Hanover Quay.
Balark, part of the Marlet Group led by Pat Crean, is behind the planned development.
It claimed the project was being delayed by the Chambury Investment Company, which was connected to Mr Ronan.
Chambury claimed Mr Ronan bought the freehold interest in the affected lots in June 2015 but Mr Ronan's lawyers said he was no longer the owner.
Chambury claimed its interest in the property was worth €20m.
However, the Circuit Court ruled, in July 2017, that Balark was entitled to acquire Chambury's fee simple interest in the property for just €60,000.
Chambury appealed the Circuit Court's decision the High Court. Balark separately sought a declaration it was entitled to demolish buildings on the land.
Today, Mr Justice Haughton affirmed the orders of the Circuit Court.
He also granted Balark declarations it sought in relation to demolition.
Balark had brought its application to acquire the fee simple in both lots in 2016 under the Landlord and Tenant (Ground Rents) Acts of 1967 and 1978 which provide for the buyout of ground rent. Original leases for the land dated to 1939 and 1858, expiring after 250 years.
Chambury disputed Balark's application.
The county registrar ruled in Balark's favour in April 2017 and following appeal by Chambury to the Circuit Court, this decision was confirmed although a higher fee simple purchase price of €60,000 was assessed by the Circuit Court judge.
In his decision on Chambury's appeal to the High Court, Mr Justice Haughton said it would be "entirely unreasonable and wholly unjust" not to declare Balark was entitled to acquire the fee simple in relation to the first lot if redevelopment of the property in 1909/10 as a ferry office and embarkation terminal was already a breach of a covenant under an 1939 lease.
It could not now be reasonably asserted that the development in 1909/10, which was itself a redevelopment of the site, was a breach of that covenant or that it should not now be excused under the 1978 Act, he said.
He found the entirety of the second lot, including an unbuilt on portion of it, also qualified under the Act and Balark was entitled therefore to enlarge its interest in that into a fee simple interest.
He said he had read affidavits and witness statements on which Chambury sought to place reliance in order to persuade the court not to exercise its discretion under that section 9(5) of 1978 Act.
"Without making any factual finding, taken at its height, it pointed to sharp commercial practice leading to the acquisition by Balark of its interests in the leases and the site and it reflected the commercial disappointment of an unsuccessful under-bidder". he said.
The judge described as a "generally unreliable witness" Balark founder and former director, Greg Kavanagh. He said Mr Kavanagh "deliberately misled the court on an issue going to credibility".
When Mr Kavanagh was recalled to the witness box, at his own request in order to "set the record straight", the judge said he appeared to be conflicted and to feel he was constrained by a confidentiality agreement before he resigned as a director of Balark.
This was despite the court's repeated instruction he was obliged to answer relevant questions notwithstanding that agreement, the judge said.
* This report has been subject to an amendment