Court of Appeal upholds Dublin Port Company’s entitlement to possession of property leased by Harry Crosbie’s son – The Irish Times

The Court of Appeal has upheld a decision that the Dublin Port Company (DPC) is entitled to possession of property that had been leased to a haulage company of businessman Simon Crosbie, son of Harry Crosbie who once had large interests in the docklands.

The semi-state DPC claimed Automation Transport Ltd had been overholding on a lease for the former Heatons builders’ providers timber storage property at Promenade Road.

The DPC said it required the property for wider redevelopment of the port for core import and export activity.

In 2019, the High Court ordered Automation to vacate and hand over possession of the property by December 31st of that year to the DPC.

It also rejected a counterclaim by Automation, which operated a road haulage business from the premises, that it was entitled to a new tenancy. Automation is principally involved in transporting bulk materials from the port to customers.

In the 2019 decision granting DPC a possession, the High Court’s Mr Justice Denis McDonald also strongly criticised the DPC for bringing its proceedings against Automation before investigating certain claims it made.

These included a mistaken claim that Automation was in breach of its lease by processing plastics on the premises and another claim about the failure to keep them in good repair

The judge said it was “surprising and very unsatisfactory” that any party, but particularly a public body like DPC, would make an allegation about breach of a covenant to repair the premises without first inspecting the premises, he said.

The property was leased to Simon Crosbie’s company in February 2013 after it had to move out of its previous premises at Tolka Quay Road. The Promenade Road premises were held under leases by Harry Crosbie companies along with two premises at Tolka Quay Road.

At the time, Harry Crosbie was in Nama (National Asset Management Agency) and following negotiations involving Harry, Nama and DPC, an agreement was made to sell the three premises to DPC for €5 million.

As part of the deal, his son’s haulage business could move to Promenade Road under a new lease. Promenade Road largely consisted of an open hardstanding concrete surface, some rudimentary corrugated iron sheds and a two-storey office building.

The new lease contained a provision that the tenant was to execute a “deed of renunciation” waiving any right to renew the lease. It also contained a break clause allowing either party to terminate the lease on its 5th, 10th, 15th and 20th anniversary.

In 2017, DPC exercised the break clause on its 5th anniversary but Automation disputed it and the DPC then brought overholding proceedings against Automation.

Following the High Court decision, Automation appealed.

In a just published decision of Mr Justice Maurice Collins and Mr Justice Robert Haughton, with whom Ms Justice Teresa Pilkington agreed, the Court of Appeal upheld the High Court judgment.

The appeal court said a central issue in the case related to a deed of renunciation under which Automation renounced its right to renew.

The High Court found that while there were a surprisingly large number of errors and inconsistencies in the deed of renunciation, it was clear corrections should be made to them.

This meant there was a clear and unequivocal renunciation by Automotive of its right to acquire a new tenancy.

The Court of Appeal said it was clear that there was an adequate evidential basis for that finding. The High Court was also entitled to conclude that something had gone wrong with the language in the renunciation.

The court said it agreed with the High Court judge’s analysis and conclusions to the effect that it was clear how those clear errors should be corrected.

The court also said the High Court was correct in rejecting the claim that Simon Crosbie did not receive legal advice prior to signing the renunciation deed.

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