High Court grants summary judgment for landlord against tenant for rent arrears, rejecting tenant's defence on rent suspension clauses.

[2025] IEHC 420

THE HIGH COURT

[2023/219S]

BETWEEN:

BVK ELEKTRA 2 LIFFEY PHASE 1 ICAV

PLAINTIFF

AND

ELITE GASTROBARS LIMITED AND

BUNKER ESTATES LIMITED

DEFENDANTS

JUDGMENT of Mr. Justice Barry O’Donnell delivered on the 23rd day of July 2025

1. This judgment concerns an application for summary judgment brought by the plaintiff in respect of arrears of rent, service charge, insurance contribution and licence fee as against the defendants. The motion was brought against both the first and second named defendants, where the second named defendant had guaranteed the payments to be made by the first named defendant. Following the issuing of the motion, the second named defendant was dissolved as a company. The motion for summary judgment proceeded against the first named defendant only, while the motion against the second named defendant was adjourned generally. Hence, for the purposes of this judgment the first named defendant will be referred to simply as “the defendant”.

2. The plaintiff is the owner of the Liffey Valley Shopping Centre. The defendant is the tenant of Restaurant Unit 3 within the shopping centre. The lease is dated the 15 November 2016. The original parties were the two defendants and a different company acting as landlord, with a licence between the landlord and first-named defendant similarly entered into on the same date. The freehold interest in the property was transferred to the current plaintiff and this is reflected in the relevant Folio which was exhibited to an affidavit sworn by a director of the plaintiff ICAV. The plaintiff claims arrears of rents and other charges that are said to have fallen due in the period following its registration as owner.

3. The amount claimed as owing stood at a collective total of €276,041.44 as of the 27 June 2024. In relation to the total amount averred to by the plaintiff, €272,195.42 is claimed as owing under the lease and €3,846.02 is claimed as owing under the licence.

4. Throughout the course of pleadings, the defendant raised numerous issues which they argued disentitled the plaintiff from relief by way of summary judgment. At the hearing, these issues had been refined, and therefore the issues upon which the Court must adjudicate were narrowed.

5. The parties were agreed as to the criteria and principles to be applied by the court, which are well known and clearly established, see for instance, Harrisrange Ltd v Duncan [2003] 4 I.R. 1. The plaintiff must establish its entitlement to judgment in the amount claimed. To permit the court to adjourn the matter to plenary hearing, the defendant must establish a fair or reasonable probability of having a real or bona fide defence. As described by Hardiman J in Aer Rianta cpt v Aer Lingus Ltd [2001] 4 I.R. 607, is it “very clear” that the defendant has no case?

BACKGROUND

6. The proceedings were commenced by way of summary summons on the 28 June 2023. As set out in the special indorsement of claim, Elite Gastrobars Limited entered into a lease as tenant for a term of 20 years concerning the property referred to as Restaurant Unit 3 in Liffey Valley Shopping Centre on the 15 November 2016. The lease as originally contracted was between Liffey Valley Limited as landlord, Elite Gastrobars Limited as tenant, and Bunker Estates Limited as guarantor with the terms of guarantee contained within the lease.

7. I will address the terms of the lease that were the subject of argument later in the judgment. However, the lease appears to be in a relatively standard form. The defendant covenanted to pay the reserved rent, the service charge, additional rent by way of insurance contributions, together with other identified payments. By clause 3, the rents were to be paid “without any deduction or set-off (save as permitted by law) and (save only as otherwise hereinafter provided) by equal quarterly payments in advance on the Gale Days”

8. In August 2020, the plaintiff was registered as the full owner of the freehold interest of Liffey Valley Shopping Centre. The relevant folio identifying the freehold interest was exhibited to an affidavit of Frank Martin, a director of the Plaintiff ICAV, sworn on the 30 January 2024. Section 31 of the Registration of Title Act, 1964 makes clear that the folio constitutes conclusive evidence concerning the title of the owner.

9. The defendant explained that as a result of the Covid-19 pandemic and the disruption to the business consequent to the public health measures in force at the time, the defendant went into arrears of rent from August 2020. The plaintiff similarly argues that the defendant has failed to pay the service charge, insurance contribution and licence fee from the same date.

10. The lease provides for a “rent review” mechanism which may be engaged by either party in accordance with the provisions of the lease. The relevant provision provides that in the absence of agreement, the landlord or tenant may compel the determination of a revised rent through an arbitrator to be appointed upon application to the President of the Society of Chartered Surveyors Ireland.

11. On the 2 February 2024, the defendant made an application in accordance with the terms of the lease to appoint an arbitrator. On the 15 April 2024, an arbitrator was appointed for the purpose of determining the rent review. The review was completed, and a memorandum of rent review was executed on the 11 June 2024.

12. Upon conclusion of the rent review mechanism, the rent to be paid annually by the defendant was reduced downward. This had the effect of lowering the amount claimed as owing in these proceedings, with the revised figure of €276,041.44 provided in the affidavit of Mr. Martin sworn on the 28 June 2024.

Issues which have fallen away

13. Two affidavits were sworn on behalf of the defendant with a view to opposing the application for summary judgment. In the first affidavit, sworn on 9 the January 2024 by Kevin Towey, company secretary of the first named defendant, a series of matters were averred to which purported to disentitle the plaintiff from claiming summary judgment.

14. The first of these matters concerned the issue of the plaintiff being constituted as an Irish Collective Asset-management Vehicle (an “ICAV”). The defendant argued that it was unclear if the ICAV was structured as an Undertaking for Collective Investments in Transferable Securities (UCITS). The defendant suggested that this would affect the entitlements of the plaintiff to hold property or to bring suit as landlord.

15. This argument was addressed by the plaintiff both by way of replying affidavit and through the written submissions provided to the Court. At the hearing the defendant conceded that this issue was no longer relevant, having regard to the plaintiff’s explanation in Mr. Martin’s third affidavit sworn on the 30 January 2024 that the plaintiff is incorporated as a Qualifying Investor Alternative Investment Fund (QIAIF). Mr. Martin exhibited a copy of the ICAV’s Instrument of Incorporation to this affidavit, which confirms the plaintiff’s incorporation as a QIAIF.

16. A further argument related to the appropriateness in seeking summary judgment while a rent review was in train. Similarly this argument fell away in circumstances where the review was concluded when this matter was before the court for hearing.

17. Finally, an issue concerning the Statutory Declaration required by s. 14 of the Mediation Act, 2017 was raised in the first affidavit of Mr. Towey. However, this issue was without substance and was not advanced at hearing.

ARGUMENTS

18. Therefore the outstanding issues raised by the defendants that require to be adjudicated on are as follows: a. A lack of clear explanation in the accounts and figures claimed by the plaintiff. b. The status of the plaintiff as landlord to recoup the sum claimed. c. An argument in relation to the landlord’s insurance obligations for “business interruption”.

19. It would be fair to observe that in its written and oral submissions the defendant strongly emphasised the issue relating to business interruption, and the other two issues were raised without any real force.

Accounts and Figures

20. The development of this argument was complicated by the fact that the rent review took effect during the period when affidavits were exchanged. The first affidavit of Mr. Martin exhibits a letter dated the 12 June 2023 in which the plaintiff demands the sum claimed as outstanding on that date. The letter enclosed the statement of account for the period of May 2021 to June 2023.

21. Mr. Towey’s first affidavit describes what he considers to be three issues with the Statement of Arrears provided by the plaintiff. These issues are provided in the following terms: i. A series of 6 entries at the start of the statement headed up “Tenant opening balance SC estate” involving various debits and credits giving rise to a balance of €11,253.42 which the Defendants cannot decipher; ii. 4 entries on the 15th July 2020 all entitled “Rent Opening Balance” and give rise to a cumulative deficit of €139,375.00 once a credit of €76,875.00 is applied to reduce the balance, clearly to correct an earlier, mistaken entry iii. An entry on the 10th December 2021 applying a credit to the rent balance of €76,875.00

22. A further affidavit of Mr. Martin sworn on the 30 January 2024 addresses, inter alia, the issues raised by Mr. Towey in relation to the Statement of Account. In relation to the issue concerning “Tenant opening balance SC estate”, Mr. Martin avers that these entries resulted from the transfer of service charge from the original landlord to the plaintiff. Mr. Martin outlines how the net amount provided in the statement of account was arrived at: Service charge for Q2 2020 less service charge balancing from year end 2019.

23. The issue raised in relation to the four entries labelled “Rent Opening Balance”, was similarly addressed in the same affidavit of Mr Martin. Mr. Martin avers that two charges were applied to the account, with one subsequently reversed. A “correct” charge was then applied, which provided a breakdown between the principal sum owed and VAT due. A credit was then applied in December 2021 to reverse the second of the two charges listed. The third issue raised by Mr. Towey goes to this credit applied in order to reverse the second charge listed. The corrected figure which again simply provided for a breakdown between the principal sum and VAT due was then applied.

24. An affidavit was then sworn by Roy Deller, Director of Savills Commercial (Ireland) Limited on the 14 March 2024. Mr. Deller avers that Savills provide property management services to the plaintiff in respect of Liffey Valley Shopping Centre, with these services including, inter alia, the collection and reconciliation of rent from tenants. The affidavit was sworn in order to reflect a payment received, and thus to accurately reflect the amount claimed as owing on that date. Updated statements of account were exhibited to the affidavit of Mr. Deller.

25. A final affidavit was sworn on the 28 June 2024 in order to provide an updated figure for the amount claimed as owing to reflect the rent review memorandum which was entered into by the parties.

26. It is notable that although the issue of what the defendant refers to as “discrepancies in the makeup of accounts and figures” remained at issue at the hearing, no discernible error or unexplainable figure could be identified, beyond those already addressed by Mr. Martin in his affidavit sworn on the 30 January 2024. The defendant relies on the submission that it is not obvious that the plaintiff has supplied a “clear and lucid explanation” for the supposed discrepancies.

27. At the hearing of the motion, counsel for the defendant attempted to point to a mathematical error in the affidavit of Mr. Martin sworn on the 28 June 2024, wherein the difference between the rent accruing under the “old” rent and under the “new” rent was averred to be a figure of €137,877.95, while counsel for the defendant submitted that the difference ought to be €167,167.53.

28. It is not clear from the submission of the defendant how this figure was arrived at, or whether the supposed error of Mr. Martin was a mere arithmetic error or resulted from an incorrect entry in the statement of accounts. In any event, the figure arrived at by Mr. Martin is explained through an exhibit wherein the breakdown of the old and new rents are provided, which clearly provides for a difference of €137,877.95.

29. In all the circumstances, I am satisfied that the figures provided by the plaintiff and clarified by the explanations on affidavits are accurate and reliable. Again, it must be emphasised that the defendant accepted that it had not paid the rent and other charges for periods. Its primary argument was that this was related to the trading difficulties during the period of Covid restrictions and also excusable for reasons to do with the business interruption clauses in the lease. In addition, the defendant suggested that the landlord had not activated the rent review clause, which would have given rise to an adjustment in the figures claimed.

30. As explained, the rent review issue was addressed by the parties and an agreed position was achieved with a consequent adjustment to the figure claimed. The defendant nevertheless continued to contend that the plaintiff had not provided “a clear and lucid explanation” for the sums claimed. However, the defendant did not set out on affidavit what it said was the correct figure. This was so despite the fact that on a number of occasions the plaintiff has sought to set out and explain the basis for the computation of the relevant figures. In a case such as this, if a defendant adopts the position that without prejudice to an argument that the sums were not due and owing, the sums themselves are inaccurate, it is very unhelpful if the defendant does not set out clearly what it contends to be the discrepancies in the plaintiff’s evidence and to explain what it says are the correct figures.

Status of Landlord

31. The thrust of the defendant’s assertion in this regard was that the plaintiff had not established how the plaintiff is entitled to the landlord’s interest in the lease beyond a mere averment by Mr. Martin that the plaintiff is entitled to the reversion in the lease.

32. The argument advanced by the defendant for this purpose was refined at hearing and the emphasis lay on the fact that prior to the registration of freehold title of the plaintiff, there were two companies who owned the property as tenants in common. The issue was therefore at what stage did the plaintiff become entitled to arrears of rent that may have arisen before registration.

33. The plaintiff argues that its entitlement to recoup the sum claimed has been consistently provided throughout the pleadings. Mr. Martin avers in his first affidavit, “at all material times hereto, the Plaintiff has been entitled to the reversion in the said Lease”. In his replying affidavit, Mr. Towey claims that this bald assertion is not sufficient to prove entitlement to the reversion and notably, “it is for the Plaintiff to make out its title to maintain the instant proceedings”.

34. The relevant folio was exhibited to the third affidavit of Mr. Martin. The folio makes clear that the freehold interest over the property was registered by the Plaintiff on the 6 August 2020. Mr. Martin avers that it can be seen from the folio that the freehold interest first rested with the original landlords, before it was registered by the Plaintiff.

35. The issue of the plaintiff’s status as landlord was not addressed by Mr. Towey in his second affidavit, and there was no response to the explanations that had been provided. The defendant submitted at hearing that this issue was addressed in a different manner by the parties, with the defendant accepting the plaintiff’s title as landlord, but querying at what point the plaintiff became entitled to the arrears of rent. However, it is clearly stated in the first affidavit of Mr. Towey that the issue was concerning the plaintiff’s requirement to “make out its title to maintain the instant proceedings”.

36. As noted above, the sums claimed in this application fell due after the registration of the plaintiff’s title as owner of the folio. The relevant extract from the folio was exhibited, and

– as provided for by section 31 of the 1964 Act – is conclusive evidence of that interest. Moreover, since the proceedings commenced the defendant and plaintiff entered into a Rent Review Memorandum. The effect of that agreement, which followed the rent review process provided for in the lease, means that the defendant must be taken to accept that the plaintiff is the proper landlord. Accordingly, while the court would have preferred the plaintiff to have provided more evidence regarding the manner in which the original owner transferred its interest in the lease to the plaintiff, I do not consider that it is open to the defendant to challenge the plaintiff’s title.

37. In addition, the sums claimed are all sums that are said to have fallen due after the change in ownership. In the premises I am not satisfied that the defendant has established that there is any legal impediment to this aspect of the plaintiff’s claim.

Insurance and Business Interruption clauses

38. The issue arising under this heading concerns the interpretation of certain provisions of the lease. The defendant’s first argument, which was not entirely clear, was that in accordance with their interpretation of the lease, the landlord was to obtain insurance in respect of business interruption caused by public health measures and where this did not occur an issue arises. Second, there was a more detailed argument that there can be a cesser of the obligation to pay rent where the means of access to the premises is “prevented”, as the defendant claims was the case throughout the time Covid emergency measures were in effect.

39. In the premise of those asserted interpretations of the lease, the defendant states that a bona fide case can be advanced in two respects and which therefore have the result of disentitling the plaintiff to summary judgment: a. The plaintiff is responsible for its breach of covenant in not effecting appropriate insurance to protect against loss of rent, where that loss is not attributable to any fault of the defendant. b. The wording of the suspension of rent clause is more than capable of supporting a claim on the part of the defendant for such a suspension, since they were precluded from exercising any use of the premises.

40. Under the terms of clause 1.17, “Insured Risks” are to mean: “… loss or damage by fire explosion lightning impact earthquake floor storm and tempest riot civil commotion and malicious damage or bursting or overflowing of water tanks apparatus or pipes aircraft or other aerial devices dropped or falling therefrom and such other risks as the Landlord may from time to time consider prudent or desirable and such risks may from time to time be covered by any policy or policies of insurance as the Landlord may be reasonably able to obtain, in each case, to the extent that and subject to such conditions as insurance against such risks is generally available from time to time.”

41. By clause 6.2, the Landlord covenanted with the tenant to insure in the following terms: “6.2.1. At all times during the Term … to insure in such manner as the Landlord may from time to time determine the Centre (including the Premises) against the Insured Risks (and the destruction of plate glass if the Landlord chooses) in the full reinstatement cost as determined by the Landlord thereof including architects and surveyors fees and four years … loss of rents (including Service Charge Rent).

6.2.2. If the Premises or any part thereof shall be destroyed or damaged or all means of access thereto is prevented by any of the Insured Risks … the Landlord will lay out insurance monies received (save in respect of loss of rent) in rebuilding restoring or reinstating the same with all convenience speed after all necessary consents and approvals have been obtained making up any shortfall out of its own monies …”

42. By reference to the insurance clauses, the defendant argues that the plaintiff ought to have obtained some form of business interruption insurance to cover the risk that rent would be lost due to circumstances such as the Covid restrictions. The plaintiff has made clear that it did not have that type of coverage in place.

43. The argument was not advanced with particular force or detail. It is clear from the definition of “Insured Risks” that the type of cover contemplated by the lease primarily related to potential causes of physical damage to the Centre and Premises. Hence there is a recitation of such potential causes of physical damage, from burst water tanks to articles dropping from aircraft. The clause having recited a series of potential causes of physical damage then refers to “such other risks as the Landlord may from time to time consider prudent or desirable…”.

44. By clause 4.2 the tenant is required to make a contribution to the costs of cover of the insured risks. The tenant is also required to contribute “the whole of the cost expended by the Landlord in insuring against four years loss of rents…”.

45. In turn, for its part, as noted above, by clause 6.2.1., the landlord is to insure “in such manner as the Landlord may from time to time determine the Centre (including the Premises) against the Insured Risks …”

46. I consider that the landlord’s obligation to insure under the terms of the agreement cannot be understood as extending to an obligation to provide cover against the type of business interruption caused by the Covid restrictions. The obligation extends to the Insured Risks and that definition does not refer expressly or by implication to losses caused by public health restrictions. I understand the references to four years loss of rents as confirming that if the events referred to in the definition of Insured Risk materialise then the consequent effects of that event may include a loss of rents. For instance, if the water tanks burst in addition to costs of repairing that damage it may be that in turn the tenant may not be required to pay rent, an eventuality provided for in clause 7.4 discussed below. The landlord may insure against that eventuality, but the lease cannot be read as providing for an obligation on the landlord to insure against losses of rent that are unconnected to the Insured Risks, as defined.

47. This leads to the argument relating to clause 7.4. The defendant argues that this clause can be triggered in a case where the defendant’s business was affected by public health restrictions. The relevant clause provides as follows, and I have underlined the elements within the clause that bear emphasis: “7.4.1. If the premises or any part thereof shall at any time be destroyed or so damaged as to be unfit for occupation and use or all means of access thereto prevented in either case by any of the Insured Risks and provided that the insurance policy maintained by the Landlord shall not have been vitiated or payment of the policy moneys refused in whole or in part in consequence of some act default or omission of the Tenant or any person or persons claiming under the Tenant (or any servant or agent or licensee of the Tenant or any such person or persons aforesaid) the rents (including the Service Charge Rent) hereby reserved or a fair and just proportion of them according to the nature and extent of the damage sustained shall from and after the happening of such event and until the Premises and a means of access thereto shall have been rebuilt or reinstated and made fit for occupation or use or until the period of four (4) years (or such longer period in relation to which the Landlord shall have insured) shall have expired whichever period shall be the shorter) be suspended and cease to be payable and in case of dispute as to the proportion or period of the said abatement the same shall be determined by the Surveyor whose decision shall be final and any such abatement as aforesaid shall be in full satisfaction of all claims for damages by the Tenant against the Landlord arising out of any such destruction or damage as aforesaid.”

48. There is no doubt and there was no dispute that the provision addresses a situation where (i) any of the Insured Risks (ii) cause damage or destruction (iii) to the Premises or any part thereof, such that (iv) the Premises is unfit for occupation and use. The defendant, however, placed emphasis on the words “or all means of access thereto prevented”. Those words, so the argument went, meant that if access to the defendant’s premises was prevented by public health restrictions it followed that the rents could be suspended and cease to be payable.

49. I consider that this interpretation is clearly incorrect; and the interpretation is sufficiently clear and straightforward such that there is no need to adjourn the case to a plenary hearing on that issue. In that regard this issue falls within the category of contractual issues identified as capable of being dealt with in a summary application inter alia in McGrath v O’Driscoll [2007] 1 I.L.R.M. 203.

50. I consider that the words identified by the defendant cannot be viewed in isolation, or the clause atomised, in the manner proposed by the defendant. It seems clear to me that the clause when read as a whole is directed to a different scenario. The first two lines make clear that what is contemplated in the first instance are two scenarios: in the first, the Premises or a part of the premises are destroyed so as to be unfit for occupation and use. In the second situation, all means of access to the Premises or a part of the Premises is prevented. Hence the clause can encompass a situation in which the Premises itself is not damaged, but some other event means that the Premises cannot be accessed. For instance, in the event of flooding on a ground floor it may be that a premises on an upper floor is not directly damaged but, because the ground floor is closed off, it is not possible to access an upper floor.

51. Importantly the above scenarios are controlled by the words “in either case by any of the Insured Risks”. The use of those words makes clear that whether there is direct damage to the Premises, or all means of access to the Premises is prevented, in either case this must be attributable to an event that falls within the definition of “Insured Risks”. As noted above that definition does not include business interruption caused by public health restrictions.

52. That construction of the clause is confirmed, in my view, by a consideration of the remainder of clause 7.4.1. Later in the clause, it is made clear that it is not simply the case that the rent may be suspended or may cease to be payable, but that the cesser can apply to “a fair and just proportion of them” which in turn is determined by reference to “the nature and extent of the damage sustained”, and the period of cesser will run from the happening of “such event until the Premises and a means of access thereto shall have been rebuilt or reinstated and made fit for occupation or use ..”.

53. In my view those words clarify, if any clarification is required, that the clause is concerned with events giving rise to physical damage and its consequences, which are precisely the type of events iterated in the definition of Insured Risk. It also confirms that, when the first lines of the clause refer to preventing access, this is a reference to something with a physical cause and not a regulatory cause. The words referred to above allow for a cesser of rent until the means of access is rebuilt, reinstated or made fit for occupation or use. All of those matters are references to the carrying out of some works rather than the lifting of a regulatory restriction.

54. While this matter can be resolved by reference to the words of the lease, the court notes that the parties referred to case-law that each side considered supportive of their positions. The plaintiff relied on the decision of Sanfey J. in Oyster Shuckers Ltd v. Agriculture Manufacture Support (EU) Ltd [2020] IEHC 527, and the decision of the Court of Appeal of England and Wales in Bank of New York Mellon (International) Ltd v. Cine-UK Ltd [2022] EWCA Civ 1021.

55. The Oyster Shuckers decision was made in the context of an application for interlocutory relief, where the plaintiff sought to restrain the defendants from taking possession of a property held under a lease. Among the issues canvassed was a contention that the plaintiff could rely on a rent cesser type clause in the lease to support its argument that the rent was suspended and therefore the landlord’s entitled to regain possession had not arisen. The plaintiff argued that the imposition of public health restrictions because of the Covid pandemic meant that it could not trade and that this was a matter contemplated in the rent suspension clause. Sanfey J. found that on the particular wording of the relevant clause there was no basis for the plaintiff’s proposition.

56. While the wording of the clause in Oyster Shuckers was somewhat different to the wording of clause 7.4.1. in this case, the essential thrust was the same and the court’s approach to its interpretation and meaning was similar to the approach adopted in this case. Accordingly, while the treatment of that part of the Oyster Shuckers case does not determine this case, I consider that the judgment provides general support for the approach I have adopted in this case.

57. The Bank of New York case also involved a claim that a rent cesser clause contemplated a situation where the tenant could not enjoy the premises during the period when the premises could not be used due to Covid restrictions. There, the clause under consideration differed slightly from the clause in this case, but similarly referred to destruction or damage to the property “or access thereto” so as to render the property unfit for occupation or use.

58. The English Court of Appeal, in a detailed judgment from the Chancellor of the High Court, Sir Julian Flaux, rejected the interpretation sought by the tenant. Again, because the wording of the clause was somewhat different, the decision cannot be seen as in any sense determinative for this application. Nevertheless, as with the Oyster Shuckers decision, I am satisfied that the approach to interpretation adopted by the Court of Appeal is consistent with the approach to interpretation adopted in this case, and there are no issues raised in either

decision that suggests a different outcome should be reached in this case.

59. The defendant sought to rely on the decision of Butler J. in the High Court in In the Matter of Lestown Property Limited [2021] IEHC 513. That concerned an application to have the company wound up on the basis that it was unable to pay its debts, pursuant to s. 569(1)(d) of the Companies Act 2014. The company had not paid rent prima facie due under a lease due to Covid-19 public health restrictions. Among the arguments made by the company, was one to the effect that it was not obliged to pay rent during the period under the terms of a rent suspension clause.

60. Aside from the different legal context for that application, a notable difference between that case and the present is that the petitioner landlord had obtained insurance in respect of “notifiable diseases”, which was understood as including Covid-19. Hence where the landlord elected to obtain that form of insurance, there was an argument that it fell within the definition of “insured risks” under the terms of the relevant lease. In addition, the court in that case emphasised that the company had lodged the amount of the statutory demand with its solicitors

– not a feature of this case. Ultimately, without conclusively determining the underlying contractual dispute or determining the meaning of the relevant clauses, the court decided that in the extraordinary situation that then presented the court was very reluctant to make an order winding up the company.

61. In the premises, I do not consider that the decision in Lestown operates in a way that binds this court to make the finding sought by the defendant. That decision involved a different scenario – where the landlord had cover for notifiable diseases – and a different more draconian application – the winding up of a company, and it engaged issues of discretion that were very much acknowledged by the court to be context specific.

62. In all the circumstances, I am satisfied that the plaintiff has made out its application and that the matters raised by the defendant by way of putative defence have not reached the threshold that would persuade the court to adjourn this matter to a plenary hearing.

63. I will therefore make an order granting judgment to the plaintiff in the amount of €276,041.44. I will list the matter for final orders and to hear from the parties in relation to any issue relating to costs or interest before me at 10.30am on Thursday, the 9 October 2025.