Tuesday 24 October 2017

Purchase must go ahead after court rejects claims building smells of diesel

Stock picture
Stock picture

Tim Healy

The purchaser of an office unit in a newly built Co Wexford development has lost an appeal in which he claimed he was entitled to pull out of the deal because of an alleged strong smell of diesel from it.

Keith Cooke entered a contract to buy unit 12 in the Pugin Court development in Gorey for €330,000 in 2006. 

The vendor was Wynn Clons Development Ltd which had built the modern three-storey structure comprising six retail and 12 office units.

The High Court and Court of Appeal found there was no scientific evidence of a smell.

Mr Cooke paid a €33,000 deposit but by September 2007 sought its return and mutual rescission of the contract because, it was claimed, the smell was very bad.

Wynn Clons disputed there was any smell and forfeited the deposit before issuing legal proceedings for specific performance of the contract.

In 2012, the High Court found it was impossible to find that there existed in unit 12 a noxious smell which rendered it unfit for human habitation or unsuitable on safety, health and welfare at work grounds for use as an office. 

It ordered Mr Cooke to go through with the contract to purchase.

Mr Cooke appealed and on November 4, a three-judge Court of Appeal upheld the High Court decision.

Mr Justice John Hedigan, on behalf of the court, said it was implicit in the High Court judge's conclusions that Mr Cooke had produced no scientific evidence of unfitness of the unit which was sufficient to free him from his obligation to complete the contract.

The judge said three of four experts who inspected the premises, an engineer, an architect, and indoor air assessment expert, all detected no smell.  

Two purchasers of adjoining units also gave evidence they had never detected any smell in the building as did a number of other people who visited unit 12, he said.

Another engineer and an auctioneer acting for Mr Cooke said they did get a smell, the judge said.

The High Court finding was based on credible evidence and the appeal court cannot interfere with that finding of fact, he said.

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