A €59,000 award to a man who bought what he said turned out to be two "useless" cruiser berths at a River Shannon marina has been overturned by the Court of Appeal (CoA).
Michael Begley bought the two 12-metre berths "off the plans" in 2005 for €40,000 each at the Jolly Mariner Marina Village in Athlone, County Westmeath. He also bought two apartments in the marina which were not subject of dispute.
The Marina Village was part of a development of mixed residential, retail, and marina units developed by Damesfield Ltd and on part of the waterway owned by John Lally.
Mr Begley owned a 11.5 metre cruiser and other small pleasure craft. He claimed his vessels could not access the marina berths because of the presence of a large rock outcrop close to the pontoon bedrock.
He claimed that before he closed the deal to buy the berths he was assured the waterway would be dredged and the rock removed but it was not.
He sued Damesfield, Mr Lally and the Jolly M Management Company which managed the marina. He claimed, among other things, breach of contract and breach of covenant for quiet enjoyment.
The claims were denied.
Two years ago, the High Court awarded Mr Begley €59,289 in damages jointly and severally against Damesfield and Mr Lally. No claim was established against the management company.
The award consisted of an updated valuation of €15,000 each for the berths, some €19,000 Mr Begley spent on rent for an alternative berth and service charges he had to pay.
The court found the claim for breach of contract had been made out. However claims for nuisance and breach of covenant did not succeed.
Damesfield and Mr Lally appealed. Among their grounds was that there was no claim of any promise or assurances about the removal of the rock. It was also argued there was no evidence of the existence of a collateral contract to remove the rock and the High Court erred in this respect.
Mr Begley opposed the appeal.
On Friday, the CoA allowed the appeal.
Ms Justice Aileen Donnelly, on behalf of the three judge appeal court, said the High Court had made "clear findings" of a breach of a collateral contract.
There was however no evidence before the High Court which was "sufficiently cogent " to permit such a finding being made.
A breach of a collateral contract had never been pleaded and there was no application to amend the pleadings in that respect, she said.
There were also no legal submissions at the end of the evidence squarely addressing the issue.
"In those circumstances, there was a procedural unfairness to the appellant of such significance that it is necessary to allow the appeal," she said.
The judge said she wants submissions later from the parties on whether this issue should be sent back to the High Court for the sole purpose of addressing the issue of collateral contract and, if so, how this might be dealt with in that court.