Marlan Homes Ltd -v- Walsh & Anor [2009] IEHC 135 (20 March 2009)

Marlan Homes Ltd -v- Walsh & Anor [2009] IEHC 135 (20 March 2009)

The defendants are obliged to procure that Marlan can obtain security over the defendants' interest in the Dublin City Council lands (i.e., their interest under the December Agreement), for any borrowing within clause 6(c) of the November Agreement, and are not limited to the type of borrowing contemplated by the December Agreement. The obligation is not exhausted by the prior execution of a mortgage in favour of AIB plc, and Marlan is entitled to require further mortgages within the scope of clause 6(c).

Citation
[2009] IEHC 135
Parties
Plaintiff: Marlan Homes Limited; Defendant: Mark Walsh; Defendant: Gary Wedick
Jurisdiction
Ireland
Judgment Date
20 March 2009
Procedural Posture
Commercial / Determination of Preliminary Issues on Contract Interpretation
Outcome
Preliminary issues resolved in favour of the plaintiff's interpretation, subject to the limitations set out in the judgment.
Legal Topics
Specific Performance, Interpretation of Contracts, Mortgage Obligations, Building Licence Agreements
Contract Law Property Law Commercial Law Specific Performance Interpretation of Contracts Mortgage Obligations Building Licence Agreements

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Parties

Marlan Homes Limited

Plaintiff

Mark Walsh

Defendant

Gary Wedick

Defendant

Procedural Posture

Commercial / Determination of Preliminary Issues on Contract Interpretation

Legal Issues

  1. 1 Whether defendants are required to compel Dublin City Council to consent to a mortgage over specified lands
  2. 2 Whether defendants are required to execute a further limited recourse mortgage after having executed one in favour of AIB plc

Ratio Decidendi

The defendants are obliged to procure that Marlan can obtain security over the defendants' interest in the Dublin City Council lands (i.e., their interest under the December Agreement), for any borrowing within clause 6(c) of the November Agreement, and are not limited to the type of borrowing contemplated by the December Agreement. The obligation is not exhausted by the prior execution of a mortgage in favour of AIB plc, and Marlan is entitled to require further mortgages within the scope of clause 6(c).

Court Disposition

Preliminary issues resolved in favour of the plaintiff's interpretation, subject to the limitations set out in the judgment.

Orders

  • Defendants are required to seek to procure Dublin City Council's consent to a mortgage over their interest in the relevant lands under the December Agreement.
  • Defendants are required to execute a further limited recourse mortgage within the scope of clause 6(c), notwithstanding the prior mortgage to AIB plc.