An action taken by Dunnes Stores Ltd against solicitor Mr Noel Smyth for payment of £500,000, which Dunnes alleges was a deposit in a Dublin land deal, has opened in the High Court. In proceedings against Mr Smyth, a partner in Noel Smyth & Partners, Fitzwilliam Street, Dublin, and Livingstone Properties Ltd, with a registered office in Limassol, Cyprus, Dunnes is seeking the return of £500,000 it claims it paid to Livingstone Properties, of which it claims Mr Smyth is a director, for a deal involving lands at Ayrfield, Malahide Road, Co Dublin.
It is also seeking orders setting aside a purported contract of sale between Dunnes and Livingstone. Mr Smyth is counter-claiming that the proceedings are motivated out of malice against him personally and is seeking damages, including special damages. Livingstone Properties is also seeking damages and an order stating it was entitled to forfeit the deposit because Dunnes failed to complete the sale in the time set.
Dunnes claims it entered into the contract on December 21st 1991 to buy the Ayrfield lands for £1.8 million. It claims the vendor was described as Livingstone Properties Ltd, with a registered office at Amiens Street, Dublin.
Dunnes claims the contract was signed for "the vendor" by Mr Smyth as director and that, in doing so, Mr Smyth had represented to Dunnes that "the vendor" was an Irish company.
It claims the contract was subject to special conditions including the granting of planning permission to develop a superstore. It claims it was agreed that the £1/2 million deposit should be immediately released to the vendor and not retained by the solicitor as stakeholder.
Dunnes claims there was at all times, to Mr Smyth's knowledge, no such company as that described as "the vendor" in the contract and on whose behalf, it claims, Mr Smyth purported to sign as director.
It claims a company of the same name, Livingstone Properties Ltd, was the owner only of part of the lands and had its registered office in Cyprus.
Dunnes claims it instructed Mr Smyth to apply for planning permission for a shopping centre development. It claims Mr Smyth advised and it agreed that "the vendor" should apply for planning permission on Dunnes' behalf and the application was made by Gannon Homes Ltd, represented by Mr Smyth.
The court heard planning permission was refused but later granted on appeal to An Bord Pleanala, subject to conditions described yesterday by Mr John Gordon SC, for Dunnes, as "onerous".
Mr Gordon said the permission was dependent on water, sewerage and other expensive works being undertaken at a nearby development of several hundred homes and Dunnes could not know when such works would be carried out and when it might proceed. Dunnes claims it does not, due to Mr Smyth's negligence and breach of duty, have the right to compel the carrying out of the works required by the permission.
The permission was "wholly useless" because of the conditions and was not a planning permission within the terms of the purported agreement, it is claimed.
Dunnes claims that, fully aware of all these matters, Mr Smyth purported to act on behalf of "the vendor" and/or Livingstone Properties and served a completion notice on Dunnes to complete the land purchase within 28 days or lose its deposit.
Dunnes claims Mr Smyth has been negligent and guilty of a breach of contract and duty and claims it has suffered loss and damage and the loss of £500,000 paid to Livingstone as a deposit and sums paid to Mr Smyth for planning application fees and expenses.
Dunnes claims that Mr Smyth has acted as its solicitor for several years and was retained to act on the Ayrfield purchase and the planning permission.
In his notice of defence and counterclaim, Mr Smyth admits he was a director of Livingstone Properties Ltd, registered in Cyprus. He says he has carried on business at Amiens Street in Dublin.
He admits he acted as solicitor for Dunnes Stores for several years but did so as a partner in Noel Smyth & Partners. He denies he was retained or employed to act for Dunnes for the Ayrfield lands purchase or for the planning application but says Noel Smyth & Partners was retained for it. He claims Livingstone was the vendor of the lands and claims Dunnes was aware its registered office was in Cyprus, or was indifferent.
Mr Smyth denies he represented to Dunnes that the vendor was an Irish company. He claims the Amiens Street address was "mis-described" on the contract and this was an oversight.
Mr Smyth says the £500,000 was paid to Noel Smyth & Partners and released by them at Livingstone's direction in accordance with the contract. Mr Smyth denies allegations of breach of duty and contract and negligence. He claims the proceedings were motivated by malice towards him, and were aimed at bringing him into disrepute.
He claims to have suffered loss, damage and expense and to have been exposed to public opprobrium.