Holiday apartment dispute must go to Spanish courts

DOZENS of couples who bought apartments in Spain and claim they were deceived into paying an extra €5,700 on the purchase price will have to sue in the Spanish courts if they are to recover their money.

Judge Alison Lindsay ruled in a test case in the Circuit Civil Court yesterday that the Spanish courts had jurisdiction of a claim for damages for alleged breach of contract and alleged deceit, misrepresentation and negligence.

The test case was taken by Stephen and Evelyn Fennell, of Forest Court, River Valley, Swords, Co Dublin, on behalf of 100 other purchasers seeking to recover a total of €570,000 in alleged extra payments as well as damages.

They sued Bayport Properties Ltd, Phibsborough Place, Dublin; Dermot Williams, River Forest, Leixlip, Co Kildare; Paul Clemenson, Churchill Terrace, Sandymount, Dublin; Global Urpi Properties SL, Alicante, Spain; Edo Mark, Alicante and Playas de Orhuela SA, Alicante.

Judge Lindsay heard that the Fennells agreed to purchase a €57,000 apartment at Playas de Orihuela in Marbella.

Having paid a deposit of €2,500 the purchase price had then been fully paid and afterwards they, like the others, had to pay a further 10%, or €5,700, to conclude their acquisition of the property.

Judge Lindsay noted the contract, signed in Spain, included a specific and exclusive jurisdiction clause stating that the settlement of any dispute would be tried in the Spanish courts.

She was satisfied the Fennells had independent legal advice before entering into the agreement and that if the dispute was a simple case of breach of contract the jurisdiction would be in Spain. The other issues raised, such as alleged deceit, were so closely allied to the contractual issue as to bring them within the jurisdiction of the Spanish courts.

She was satisfied the “harmful event” pleaded in the proceedings, whereby the developer had allegedly breached the contract in demanding a further 10% before the apartment was completed, had taken place in Spain.

She told Raymond Delahunt, counsel for the Fennells, and Barra Faughnan, counsel for the defendants, that the Irish courts had no jurisdiction to deal with the matter. She awarded costs against the Fennells.