Contempt claim dismissed; extension granted; costs split due to complex issues and defendant's delay.

THE HIGH COURT

COMMERCIAL

[2025] IEHC 480

[Record No. 2018/6540P]

BETWEEN

POINT VILLAGE DEVELOPMENT LIMITED

PLAINTIFF

AND

DUNNES STORES UNLIMITED COMPANY

DEFENDANT

JUDGMENT of Mr. Justice Mark Sanfey delivered on the 4th day of September, 2025.

Introduction

1. On 10 April 2025, I delivered judgment (‘the judgment’ or ‘the main judgment’) in relation to an application by the plaintiff seeking a declaration that the defendant was in contempt of an order of the High Court (Barniville J.) of 20 October 2021, as amended by order of the Court of Appeal on 28 January 2022 (collectively ‘the Orders’).

2. The main judgment sets out in detail the background to the matter generally. That judgment requires to be read in conjunction with the present judgment, as the issues addressed in this judgment are linked to, and follow on from, the issues addressed in the main judgment. In the interests of concision, I do not intend to set out again matters which have been rehearsed in detail in the main judgment. Any terms, abbreviations or acronyms used for a particular purpose in the main judgment are similarly used in the present judgment.

3. The judgment dealt with the main allegation by the plaintiff of contempt against the defendant: in essence, that the defendant breached para. 1(d) of the Orders by failing “to procure the execution and completion of the Fit Out Works of the Anchor Unit (as defined in the Development Agreement), in accordance with Clause

11.5 of the Development Agreement within 26 weeks of 10 December 2021…” [see para. 26 of the judgment], and was therefore in contempt of court. I held that the plaintiff had not established beyond a reasonable doubt that the defendant was in contempt of the Orders by reason of procuring the installation and fitout of a store which was considerably less in area than the total floor area available for an anchor unit.

4. The defendant readily conceded that it had not complied with para. 1(d) of the Orders to the extent that it had not procured the execution and fitout of the unit which it ultimately installed until 27 July 2022, over 6 weeks after 10 June 2022. Accordingly, the defendant issued a motion (‘the extension motion’) on 7 June 2022 seeking an order varying the Orders to extend the time for compliance with Order 1(d) to 27 July 2022.

5. This motion was addressed by the parties at the hearing of the contempt application. However, I considered that I should give judgment only in relation to the main allegation of contempt, relating to the size of the unit ultimately constructed, and give the parties an opportunity to consider their respective positions in the light of my finding on that issue.

6. Accordingly, in the judgment I invited written submissions in relation to any further orders which the parties considered necessary. Both sides proffered written submissions, and at a hearing on 16 May 2025, the plaintiff sought and received retrospective permission from the court to exceed the word limit which I had imposed of 2,000 words; the defendant, which had observed the limit, was given an opportunity to expand its submissions accordingly. An oral hearing in relation to the remaining issues took place on 25 June 2025.

The Issues

7. The plaintiff considered that the issues which remained to be decided by the court were as follows:

(1) The defendant’s application for an extension of time: The plaintiff’s position was that the defendant’s application to amend the orders to extend time for compliance should be refused, and that the court should make a declaration “that Dunnes was in contempt arising from its failure to comply with the Orders by failing to complete, or commence, any works within the time stipulated…” [written submissions, para. 20];

(2) Interpretation of the order by the court: The plaintiff argued that, if the breach of the Orders by Dunnes was not sufficiently clear to warrant a finding of contempt, the court should nonetheless “clarify the effect of the Orders and [make] further directions with a view to ensuring compliance” [para. 39, written submissions]. The plaintiff submitted that the true effect of the orders was that Dunnes was obliged to fit out the entire Store, and that the court should “make Orders clarifying this effect and directing compliance with the Orders” [para. 40, written submissions].

(3) Costs: While both sides addressed the issue of costs in their written submissions and at the oral hearing, I indicated that it made more sense for all substantive issues to be determined before the issue of costs was decided, and that I would allow the parties to revisit their submissions after delivery of this judgment.

8. The defendant pressed its application for an extension of time, and opposed the plaintiff’s application for an interpretation by the court of the effect of the Orders.

Extension of Time Application

9. The defendant in its written submissions pointed out that, by the time the contempt motion had been heard on 28-29 July 2022, the fitout had been completed, and the store had commenced trading. The deponents for the defendant had apologised for the delay in their affidavits, and pointed out that “since the making of the Orders…the significant effort and extra expense incurred by Dunnes to complete the works demonstrated an intention to comply with the Orders in so far as possible” [written submissions, para. 28].

10. It was further submitted that “[g]ranting this relief would amount to an acknowledgement that Dunnes had appropriately sought to regularise its compliance with the Orders” [para. 29, written submissions], and that the court should make no order on the costs of Dunnes’ motion [para. 30].

11. The plaintiff opposed the extension application. It submitted that no work was carried out or completed, or even commenced within the timeframe set out in the Orders, and that work “only began on 16 June 2022, almost eight months after the High Court Order and six days after the extended deadline for finishing work set out in the Orders…” [para. 10, written submissions].

12. The plaintiff gave a number of reasons why the court should not accede to Dunnes’ application, which may be summarised as follows:

• Even if the court could extend time, there was no “good reason” given for doing so. It was submitted that the court would not amend an order unless there is a good reason for doing so, such as a significant change in circumstances; it was pointed out that nothing had materially changed since the High Court and Court of Appeal Orders.

• The deadline had already been extended once, when the Court of Appeal granted Dunnes a seven-week extension. It was submitted that no explanation had been offered as to why this extended time was insufficient.

• Dunnes’ failure to complete or even begin any works by 10 June 2022 is “entirely a consequence of its own delays. It failed to take any meaningful steps towards complying until many months after the Orders were made and weeks before the deadline expired…”.

• The extension application was made against the backdrop of

“enormous delay” (Barniville J. on 20 October 2021, ruling on the stay application) and “extraordinary delay by any standard” (Costello J. on

10 December 2021, ruling on the stay application). The plaintiff points out that the fitout “was contractually required to be finished in September 2016.”

• It is submitted that “it is not clear that an order in the terms sought, even if made, could retrospectively cure breaches that have already occurred”. It is pointed out that Dunnes “was well aware for months that the deadline in the Orders would inevitably be breached. Despite this, no application to extend time was brought until 7 June 2022” [See generally paras. 15-19 plaintiff’s written submissions].

13. At para. 20 of its submissions, the plaintiff requests that the court:

(a) refuse the defendant’s application to amend the orders to extend the time for compliance.

(b) mark the court’s disapproval by making a declaration that Dunnes was in contempt arising from its failure to comply with the orders by failing to complete, or commence, any works within the time stipulated.

14. In his oral submissions to the court, James Doherty SC submitted on behalf of the plaintiff that this was “a serious contempt. It may not be at the most serious end of the scale in circumstances where they were ultimately able to fit-out a store…but…this is a fairly egregious breach of the order in our respectful submission because Dunnes knew all along what it was required to do…” [transcript p.21, line 25 to p.22, line 9].

15. Shane Murphy SC, on behalf of the defendant, submitted that “…there is an attempt, we say, to quietly rerun a delay contempt point in this application…There does appear to be an attempt to refloat, as it were, or to resurface a case that we say has been determined and is not one that should be entertained in this application” [transcript p.56, line 27 to p.57, line 8]. I asked Mr. Murphy whether he was saying “that I should as a matter of course accede to your application for an extension of time?”. Mr. Murphy accepted that he had to persuade the court to exercise its discretion to extend the time, but emphasised certain actions taken by Dunnes since the making of the Orders, indicating problems which had arisen, and the incurring of significant effort and extra expense which counsel submitted evinced an intention on the part of the defendant to comply with the order of the court, even if compliance with the temporal aspect of the order was not possible. Counsel submitted that “not every failure to comply with an order necessarily amounts to a contempt of court…”, and that the present case involved “something which is … falling short of contempt…” [Transcript, pp. 56 to 63].

Interpretation of the Orders by the Court

16. The plaintiff submits that, even though the court is satisfied that, for the reasons set out in the judgment, the plaintiff has not established beyond a reasonable doubt that the defendant is in contempt of the Orders, the court can look at the Orders, clarify their meaning and effect, and give further orders and directions to ensure compliance with them. The plaintiff invokes two bases for this contention: firstly, the plaintiff argues that the court has inherent jurisdiction to do this, and that this jurisdiction was specifically invoked at para. 8 of the original notice of motion in the contempt application, where the following relief was sought: “[S]uch Orders pursuant to the inherent jurisdiction of this Honourable Court directing the Defendant to take such steps as are considered necessary for the purposes of procuring compliance with the Orders”.

17. The plaintiff points out that there was specific argument in relation to this issue during the hearing of the contempt motion. For example, Mr. Murphy submitted to me on behalf of the defendant that the relief at para. 8 “should not be contemplated in this process insofar as it could involve the court being invited to do something without actually having an evidential basis to do it” [Day 2, p.112, lines 11 to 14]. I replied as follows: “Well, it seems to be directed towards a situation where I would be satisfied that it could not be said that the defendant was in contempt of court, because that had not been established beyond reasonable doubt…But where my view would be that the clear inference from the judgment is that what was intended would be that there would be a full fitout of the entire unit. And what it seems to me I’m being asked is that, if I am not satisfied that there is contempt, but that I am satisfied that that’s the correct interpretation of Mr. Justice Barniville’s judgment, that I would make orders to give effect to that judgment” [Day 2, p.112, lines 15 to 29].

18. Secondly, the plaintiff contends that the court has jurisdiction to make orders of the type sought pursuant to the “liberty to apply” provision in the Orders. It is suggested that the purpose of a “liberty to apply” order is to enable a party to apply to the court to clarify the extent or application of an order – exactly what is sought by the plaintiff in the present case.

19. The plaintiff’s position is that, notwithstanding that the court has held that the Orders are not sufficiently unambiguous to support a finding of contempt, the effect of the Orders is that Dunnes is obliged to fit out the entire Store, rather than the much smaller area which it has fitted out. The plaintiff asks the court to find that this is indeed the effect of the Orders, and to make orders clarifying that effect and directing compliance with the Orders. It suggests at para. 41 of the written submissions the following specific directions in this regard: “(a) An Order pursuant to the inherent jurisdiction of the Court, and the liberty to apply in relation to the Orders, declaring that the reference to “the Fit Out Works of the Anchor Unit (as defined in the Development Agreement)” in paragraph (d) of the Orders should be read as referring to “the Fit Out Works of the Store (as defined in the Development Agreement)”.

(b) An Order pursuant to the inherent jurisdiction of the Court, and the liberty to apply in relation to the Orders, declaring that paragraph (d) of the Orders requires the Defendant to procure the execution and completion of the Fit Out Works of the entire Store (as defined in the Development Agreement), in accordance with Clause 11.5 of the Development Agreement.

(c) An Order pursuant to the inherent jurisdiction of the court, and the liberty to apply in relation to the Orders, fixing an extended time within which the Defendant is required to comply with paragraph (d) of the Orders.”

20. The defendant opposes any attempt to seek clarification by the court of the Orders. It contends that, having advanced the contempt application on the basis that the Orders were unambiguous, the plaintiff now submits that the Orders require clarification, and in doing so, ignores what the defendant characterises as “a central finding in the Judgment. The Court unequivocally held that the issue of whether a fit out of the entire store was required had not been litigated between the parties and therefore was not the subject of judicial determination…” [para. 7, written submissions]. The defendant submits that, in such circumstances, “…it is not appropriate that [the plaintiff] invites this Court to revisit its Judgment in the manner suggested” [para. 10, written submissions].

21. The defendant in any event takes issue with the jurisdictional bases upon which the clarification of the Orders is sought. It argues that the “liberty to apply” order “…does not enable the Court to deal with matters which do not arise in the course of working out the judgment, or to vary the terms of the order except possibly on proof of change of circumstances…” [McCracken J. in Donegal County Council v. Ballantine [1998] IEHC 203]. The defendant also submits that the invocation of the “inherent jurisdiction” of the court is inappropriate, primarily because that jurisdiction is concerned only with the enforcement of orders. It is submitted that the jurisdiction cannot be used where what is being sought is in effect a variation of the Orders. The defendant complains that the plaintiff seeks to utilise the court’s inherent jurisdiction “…to make new Orders, in respect of new issues, and with new effect…” [para. 21, written submissions].

22. In his reply to Mr. Murphy, Mr. Doherty took issue with the submission that what the plaintiff was seeking was a variation of the Orders. As he put it, “…[a]n order, like a contract, can only have one objective meaning…We’re simply asking the Court to decide between the competing interpretations of the order not just at the contempt level but at the clarification level on liberty to apply…” [transcript, p.70, lines 16 to 24].

Liberty to Apply/Inherent Jurisdiction: Analysis

23. Both sides, in addressing the ambit of the liberty to apply jurisdiction, relied in their written submissions on the decision of McCracken J. in Donegal County Council v. Ballantine. In that case, the respondents had been restrained by order of the High Court from carrying out certain blasting operations at a quarry in County Donegal for a period of three months; liberty to apply was granted. The respondent did in fact cease blasting, but continued quarrying on the lands. This activity was covered by planning permission for two years, but once that period expired, the respondent had no planning permission and the quarrying activities were an unauthorised development and/or unauthorised use of land. The applicant sought to re-enter the matter; the respondent argued that the orders which had been made were final orders and were spent.

24. The court held that the applicant could not avail of the liberty to apply jurisdiction. McCracken J. referred with approval to the following passage from Halsbury’s Laws of England, 4th Ed. Vol. 26 at para. 554: “Liberty to apply. The circumstances or the nature of a judgment or order often render necessary subsequent applications to the court for assistance in working out the rights declared. All orders of the Court carry with them inherent liberty to apply to the Court, and there is no need to reserve expressly such liberty in the case of orders which are not final. Where in the case of a final judgment the necessity for subsequent application is foreseen, it is usual to insert in the judgment words expressly reserving liberty to any party to apply to the Court as he may be advised. The judgment is not thereby rendered any the less final; the only effect of the declaration is to permit persons having an interest under the judgment to apply to the Court touching their interest in a summary way without again setting the case down. It does not enable the Court to deal with matters which do not arise in the course of working out the judgment, or to vary the terms of the order except possibly on proof of change of circumstances...".

25. McCracken J. went on to say as follows: “Probably the most frequent use of the phrase ‘liberty to apply’ is in the case where either declarations are made or injunctions are granted. In such circumstances it is always possible that events may occur which would raise the question of whether there has or has not been a breach of the Order, or whether some event does not come within the declaration granted. Liberty to apply allows the parties to come back into Court and clarify the extent or application of the Order. However, in the case of an injunction, if there is a breach of that injunction, the proper procedure is not to reapply to the Court for a further injunction, but to bring proceedings for contempt or attachment.”

26. McCracken J. was dealing with a situation where new circumstances had arisen which were related to, but not the subject of, the matters which were the subject of the final order. In those circumstances, he accepted that the previous motion was spent, and that he had no jurisdiction to make an order on foot of that motion. If, on the other hand, there had been a breach of the previous order, the appropriate application was to bring proceedings for contempt.

27. The plaintiff in the present case relies heavily on the statement of McCracken

J. that “…[l]iberty to apply allows the parties to come back into Court and clarify the extent or application of the Order…”. It is submitted that this is exactly what the plaintiff is seeking to do; whereas the defendant argues that the plaintiff is seeking to vary the orders by extending their ambit to include an issue which was not decided by the court and was not the subject of the previous order.

28. In Drogheda Corporation v. Gantley (Unreported, High Court, 28 July 1983), Gannon J. had to consider, after grant of a mandatory injunction, whether liberty to apply could be used to advance a claim against insurers which were not a party to the proceedings. In a passage relied on once again by both parties in the present proceedings, Gannon J. said as follows: “The addition to an order of the expression ‘liberty to apply’ is made in practice to enable further application to be made to the Court for the implementation of its order by way of enforcement or variation or suspension. I do not think this formula may be used for the purpose of requiring the Court to revise its decision or to entertain and resolve further or other matters in dispute which the parties had omitted to submit to the Court. It is not in my view a formula which permits a party found in default to resort to a type of third party procedure for the purpose of obtaining contribution or of casting on some third party the burden of compliance with the order made upon the claim.”

29. The plaintiff places particular reliance on the first sentence of this passage; the defendant places equal reliance on the second sentence.

30. Every court is familiar with liberty to apply orders, which are particularly common in orders dealing with injunction applications. It often transpires in the implementation of the order that some interpretation or refinement of the original order is necessary to give effect to its meaning and intent, so as to ensure that all steps necessary to comply with it are clear from the terms of the order itself. However, it is not appropriate that the liberty to apply should be used to introduce new matters which, as Halsbury put it, “do not arise in the course of working out the judgment…”. Notwithstanding that Gannon J. does refer to the possibility of using liberty to apply for the “variation” of an order, he makes it clear that the purpose of liberty to apply must be “for the implementation of [the court’s] order…”, rather than the introduction of a new issue.

31. The main judgment in the present case makes the point that there is a difficulty in relation to Order 1(d). That order requires the defendant “to procure the execution and completion of the Fit Out Works of the Anchor Unit (as defined in the Development Agreement)…”. There is in fact no definition of “Anchor Unit” in the Development Agreement, and in my view the ambiguity as to what might comprise an anchor unit meant that the plaintiff could not establish beyond a reasonable doubt that the defendant was in contempt of the order by carrying out an installation which covered very much less area than the floor space available for the unit.

32. The plaintiff continues to urge that nothing less than the fitout of the entire floor area of the unit will constitute compliance with Order 1(d). It seems to me however that there is at the very least an issue as to whether this interpretation is correct, or whether the defendant is correct in contending that something less than fitout of the entire unit is sufficient. The main judgment makes detailed reference to the evidence on both sides in the contempt application as to whether or not an appropriate fitout had been completed by the defendant, and whether or not the unit as completed was capable of being considered an anchor unit.

33. As I pointed out on several occasions in the main judgment, what exactly constituted an “Anchor Unit” was not an issue argued before the High Court or the Court of Appeal. Dunnes had relied on Clause 1.38 of the agreement, which defines “fitout works” as “such fitting out or other works as Dunnes may require to carry out in connection with the intended use and enjoyment of the Store”. It was submitted by Dunnes that the correct interpretation of Clause 1.38 was that Dunnes was not in fact required by the Agreement to carry out any fitout works at all. Barniville J. (as he then was) emphatically rejected this interpretation, and his decision in this regard was upheld by the Court of Appeal. However, as I pointed out at paras. 107, 117 and 124 of the judgment, the issue of what would constitute an anchor unit or whether the owner required Dunnes to fit out the entire floor area or something less than that, did not arise in the course of argument prior to the making of the orders; Barniville J. was not asked to decide this issue.

34. In my view, inherent jurisdiction or a liberty to apply order can be used to ask the court to clarify the extent or “working out” of the order. What the court cannot do is use its inherent jurisdiction or liberty to apply to resolve new issues which were not before the court which made the original order. As Gannon J. put it in Gantley, the liberty to apply formula may not be used “for the purpose of requiring the Court to revise its decision or to entertain and resolve further or other matters in dispute which the parties had omitted to submit to the Court.”

35. It seems to me that, for these reasons, the plaintiff cannot avail of the liberty to apply order to invite the court to “clarify” the order where the effect of the “clarification” would be to decide a new issue which was not the subject of a determination which led to that order. Neither do I think that the court has an “inherent jurisdiction” to carry out this exercise. It does not seem to me that there is any difference between the exercise by the court of a jurisdiction under a liberty to apply order or the inherent jurisdiction for which the plaintiff contends. An inherent jurisdiction to make orders for the purpose of giving effect to a previous order does not permit the court to decide issues which were not before the court which made the previous order, and which did not lead to the making of that order.

36. I referred at para. 133 of the judgment to the evident air of frustration and exasperation of the plaintiff with the actions of the defendant in purporting to comply with the Orders. While this is to an extent understandable, the difficulty in the present case stems from the failure in the Agreement to specify that the fitout works must cover the entire floor area of the unit, or at least be of a minimum size. It seems to have been assumed by the plaintiff that, once it procured an order requiring Dunnes to do the fitout works, Dunnes would be obliged to carry out work which would equip the entire unit. As we now know, Dunnes interpreted clause 1.38 of the agreement somewhat differently, resulting in the fitting out of a much smaller unit. In my view, whether or not their interpretation was correct is a distinct issue which was not canvassed before Barniville J., and the resolution of which cannot be characterised as a “clarification” or “working out” of the orders.

Extension of Time

37. At the time of the issue of the contempt motion – 17 May 2022 – the time for compliance with the orders was due to expire in three weeks’ time, and it was apparent that Dunnes would not complete by 10 June 2022 even the fitout works set out in the fitout plans of 31 March 2022. The plaintiff referred to and relied upon the anticipated failure of the defendant to comply with the deadline in its schedule to the notice of motion of matters on which it relied as demonstrating the defendant’s contempt of court.

38. As it happened, the fitout of the “penalty-box” unit was completed on 27 July 2022, the day before the hearing of the contempt motion. A chronology – originally exhibited to the second affidavit of Stephen Tennant – is attached to the plaintiff’s written submissions and shows the actions taken by Dunnes to comply with the orders. It is very clear from this appendix, and the facts of the matter generally, that the comments of Barniville and Costello JJ. on 20 October 2021 and 10 December 2021 respectively, to which I have referred at para. 12 above, were justified. The defendant compounded its failure by not commencing works on the fitout until after the deadline of 10 June 2022 – itself a deadline extended by the Court of Appeal – had expired.

39. While Dunnes had carried out some preparatory works between 31 March 2022, when it delivered the fitout plans, and 16 June 2022, when it commenced the works – appointing external consultants, submitting an application for a fire safety certificate etc – there can be no doubt that there was repeated and egregious delay in complying with the Orders on the part of Dunnes, for which no explanation has been given. Letters of 22 and 27 April 2022 were sent from the plaintiff’s solicitors intimating service of a contempt motion; on 16 May 2022, Dunnes proposed mediation for the first time. The contempt motion was filed and served the next day. The extension motion was not issued until 7 June 2022.

40. The plaintiff urges the court to find that the delay of in excess of six weeks in all the circumstances should be regarded as “a serious contempt”. Given my decision that the installation of the smaller unit did not warrant a finding of contempt of court, it is the six-week delay alone that the plaintiff relies on to ground its present allegation of contempt of court, albeit that the court is urged to take into account the fact that the deadline had already been extended by the Court of Appeal to facilitate the defendant, and also the conduct of the defendant generally.

41. Dunnes made a decision to fit out a very small area of the space available for the Store which it was contracted to fit out; in the plaintiff’s parlance, half the size of a penalty-box rather than the full pitch. If that installation had taken place by 10 June 2022, the plaintiff would probably still have proceeded with the contempt motion, but would have had to accept that a fitout had taken place in conformity with the temporal aspect of the orders. In the event, this fitout was complete by the time the contempt application was heard.

42. The defendant makes the point, which the plaintiff accepts, that not every failure to observe a court order is a contempt of court. If a sanction were considered appropriate, it would be for penal rather than coercive purposes, and must be established beyond a reasonable doubt. The type of conduct warranting a penal sanction must be conduct “which can properly be termed as ‘serious’ or ‘outrageous’ or ‘wilful’ or ‘deliberate’ or as constituting a ‘gross affront’ to the integrity of the court…” [McKechnie J., Laois County Council v. Hanrahan [2014] 3 IR 143 at para.

133, cited by this Court in Sky UK Limited v. Dunbar [2025] IEHC 465 at para. 70]. In all the circumstances, I do not consider that a six-week delay in a long running commercial dispute warrants a finding of contempt of court or a penal sanction. For the sake of good order, I will retrospectively extend the time in which the defendant was to execute and complete the proposed fitout works to the store (as defined in the Development Agreement) to 27 July 2022.

43. However, I wish to make it clear that acceding to the defendant’s application is not intended as approbation of its actions. While Dunnes may, by this motion, have sought to “regularise its compliance with the orders” – see para. 10 above – the extreme delays on which the High Court and Court of Appeal have commented, culminating in the six-week delay prior to the hearing of the contempt motion, are reprehensible and reflect no credit on the way Dunnes, one of the country’s leading retailers, does its business.

44. Pursuant to section 169(1) of the Legal Services Regulation Act 2015, I am entitled to take certain matters into account where I consider that an award other than “costs to follow the event” may be warranted. The relevant matters in the present case are:

“(a) conduct before and during the proceedings,

(b) whether it was reasonable for a party to raise, pursue or contest one or more issues in the proceedings,

(c) the manner in which the parties conducted all or any part of their cases…”.

45. The defendant is responsible for causing unacceptable delays in the proceedings, causing significant disruption and expense to the plaintiff, and has breached the order of this Court. Although I will accede to the application to extend the time, I consider that it was eminently reasonable for the plaintiff to contest the extension application, and to bring all the circumstances of the matter to the attention of the court.

46. I also consider that it was reasonable for the plaintiff to seek to have the defendant held in contempt of court for the failure to observe the temporal aspect of the orders. Whether or not the defendant would be held in contempt was a matter for the court; given the clear breach of the court’s order, the plaintiff was perfectly entitled to raise the matter for the court’s consideration.

Costs

47. Given my view of the conduct of the defendant and its clear breach of the deadline already extended by the Court of Appeal, I will order that the plaintiff’s costs of the extension motion be paid by the defendant, to be adjudicated in default of agreement.

48. As regards the costs of the contempt motion, this motion was at very least justified by the failure of the defendant to obey the temporal aspect of the orders. Although I have held against the plaintiff as regards the main ground of the application – the alleged failure to fit out the entire floor area of the store – the issues were complex and difficult. It could not be said that the plaintiff was unreasonable to pursue the issue, even though it was ultimately unsuccessful. I am also mindful that it seems clear that it was the threat, and ultimately the issue, of a contempt motion which prodded the defendant into action and caused it to complete the installation before the contempt motion could be heard.

49. In all the circumstances, my indicative view as regards the costs of the contempt motion is that the plaintiff and the defendant should each bear its own costs. However, I will give the parties an opportunity to address me on this issue.

Conclusion

50. The disposition of the various issues is therefore as follows:

(1) I will extend the time for execution and completion of the fitout works to the store (as defined in the Agreement) to 27 July 2022;

(2) The plaintiff is entitled to its costs of the extension motion, to be adjudicated in default of agreement;

(3) I decline the invitation of the plaintiff to “clarify the effect of the Orders and [make] further directions with a view to ensuring compliance” [see para. 7(2) above].

(4) I will hear submissions of the parties in relation to the costs of the contempt motion, or any other order which the parties consider necessary, at 10.30am on Wednesday 8 October 2025.