High Court dismisses vendor's claim for specific performance as no binding contract existed prior to withdrawal.

THE HIGH COURT

[2026] IEHC 44

Record No. 2023/4842P

Between:-

OUTENIQUA LIMITED

Plaintiff

-and-

NOLLAIG BUCKLEY and TOM O’NEILL

Defendants

AND

Record No. 2023/5467P

Between:-

TOM O’NEILL

Plaintiff

-and-

OUTENIQUA LIMITED

Defendant

Judgment of Mr. Justice Oisín Quinn delivered on 28 January 2026

I. INTRODUCTION

1. The above actions were heard together over two days on 15 and 16 January 2026. At issue between the parties is whether there is a binding and enforceable contract for the sale of a guesthouse called Coosan Cottage which comprises buildings and lands contained in folio WH23580F (the “Property”) from Tom O’Neill and Nollaig Buckley (the “Vendors”) to Outeniqua Limited (the “Purchaser”).

2. The Purchaser claims that it withdrew from the proposed contract before it became binding and enforceable and accordingly it claims for the return of the deposit of €142,500.

3. Mr. O’Neill claims that there is a binding and enforceable contract in existence with the Purchaser and he claims, inter alia, an order for specific performance that the Purchaser complete the sale and pay the balance of the €1,425,000 purchase price.

4. Ms. Buckley is the former spouse of Mr. O’Neill and is a joint owner of the Property.

She appeared at the hearing and represented herself and indicated that she was maintaining a neutral position.

II. BACKGROUND

The Parties

5. The Purchaser is a company that was set up by a number of individuals who have invested in companies that purchase and run hotels as International Protection Accommodation Service (“IPAS”) centres. Evidence was given at the trial on behalf of the Purchaser by Mr. Larry Craughwell and Mr. Joe Simpson.

6. Mr. O’Neill and Ms. Buckley purchased and developed the Property in the late 1990s and early 2000s as an “eco lodge”. The Property is called Coosan Cottage and it is located in Creaghduff, near Athlone. The Property was run as a small hotel or guesthouse. Mr. O’Neill and Ms. Buckley separated in and around 2010 and divorced in 2021. The Property has fourteen bedrooms but only ten bedrooms were used as the guesthouse, with four bedrooms being used as a private residence by Mr. O’Neill following his separation from Ms. Buckley.

7. As part of the terms of the divorce, the Property was to be sold and Ms. Buckley is to receive a payment from the proceeds of sale of €200,000. Ms. Buckley’s solicitor in her divorce case, Ms. Prendergast of McInerney Solicitors (hereinafter also referred to as the “Vendors’ Solicitors”), was appointed as the solicitor to have carriage of the sale of the Property on behalf of Ms. Buckley and Mr. O’Neill. In addition, Ms. Buckley’s nominee, Frank Regan Auctioneer, was appointed as part of the divorce order to be the auctioneer on behalf of Mr. O’Neill and Ms. Buckley (hereinafter also referred to as the “Vendors’ Auctioneer”). In these proceedings, Mr. O’Neill was represented by Cormac Lohan solicitor of Lohan & Co., Solicitors in Athlone.

Background to the dispute

8. The Vendors’ Auctioneer advertised the Property for sale by private treaty and bids were invited. Representatives of the Purchaser visited the Property in early June 2023.

The Purchaser made the joint highest bid of €1.425 million. This bid was made to the Vendors’ Auctioneer. There was no direct contact or conversation between the Purchaser and either of the Vendors at this time. The Vendors decided to go with the Purchaser’s bid because, apparently, only they had “proof of funds”. This was conveyed on behalf of the Vendors by Mr. Regan in a letter of 15 June 2023 to McInerney Solicitors who were acting in relation to the sale of the Property on behalf of the Vendors. This letter of 15 June 2023 was headed “SUBJECT TO CONTRACT / CONTRACT DENIED” and was entitled “Re: Proposed Sale of Coosan Eco Lodge & residence”. This letter informed the Vendors’ solicitors that Mr. Mark Killilea of MK Solicitors was acting for the Purchaser (the “Purchaser’s Solicitors”).

9. Thereafter, on 21 June 2023, McInerney Solicitors wrote to MK Solicitors in a letter headed “Subject to Contract / Contract Denied” enclosing “contracts for sale and supporting documentation”. This letter stated:

“In the meantime, please note that we have no authority to bind our client to a contract for sale until such time as contracts have been signed by the purchaser and vendor and the deposit has been paid by the purchaser and accepted by the vendor.”

This was the first letter between the parties and it was sent by the Vendors’ solicitors to the Purchaser’s solicitors.

10. The “contracts for sale” were in the general form of the Law Society of Ireland Conditions of Sale 2019 Edition. The “Vendor” was described as Ms. Buckley and Mr. O’Neill. The “Vendor’s solicitor” was stated to be McInerney Solicitors. The contracts included 17 Special Conditions. Special Condition number 7 stated:

“There is a court order in place that in default of any paperwork necessary for the sale being signed by the second named vendor [Mr. O’Neill] same shall be signed by the County Registrar in lieu. No objection or requisition shall be raised by the purchaser in this regard.”

11. The Purchaser’s solicitors replied to the Vendors’ solicitors by letter of 23 June 2023.

This letter was omitted from the documentary evidence presented at the trial on behalf of Mr. O’Neill pursuant to Chapter 3 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020. The letter of 23 June 2023 is important. It was also headed “Subject to Contract/ Contract Denied”. In this letter Mr Killilea acknowledged receipt of the contracts for the sale of the property from Ms. Prendergast. He then stated, “I would now be obliged if you could deal with the following pre-contract enquiries”.

These “pre-contract enquiries” included issues about the planning documentation;

queries about the redemption figures in relation to the Bank of Ireland charge; he also said he was awaiting receipt of a valuation “vis a vis residential/commercial”; he noted that the hotel licence attached to the premises had expired and he indicated that he was awaiting the purchasers instructions regarding that issue. He then said that he did not understand the requirement for special condition 17 in the draft documents furnished by the Vendors’ Solicitors and he stated that he required that this condition be deleted.

He then asked for confirmation as to whether any “contents” were included in the sale and he asked for an inventory. He also asked for confirmation that there was an insurance policy in force covering the property. His letter then concluded by stating as follows:

“In the meantime, please note that I do not have my client’s authority by this or any subsequent correspondence to bind it to the matter and no agreement shall be deemed to exist between our respective clients until such time as contracts are signed, the deposit thereunder paid and accepted and contracts are duly exchanged. Nothing herein shall constitute a note or memorandum for the purposes of section 51 of the Land and Conveyancing Law Reform Act. 2009.”

(underlined for emphasis).

12. This was the first letter on behalf of the Purchaser sent in relation to the transaction and MK Solicitors on behalf of the Purchaser did not subsequently ever retract this stipulation. In addition, McInerney Solicitors on behalf of the Vendors in the proposed transaction did not take issue with or make any objection at any stage to this stipulation.

13. McInerney Solicitors, on behalf of the Vendors, replied by way of letter of 27 June 2023. This letter was again headed “Subject to Contract / Contract Denied”. They were able to address some, but not all, of the “pre-contract” enquiries raised in the Purchaser’s Solicitors letter of 23 June 2023. For example, they agreed to the deletion of Special Condition 17. In respect of some issues they indicated that they were “making enquiries”. As to the “contents”, they explained that they had requested an inventory “of contents included, if applicable”.

14. In a letter of 5 July 2023 from the Vendors’ Solicitors to the Purchaser’s Solicitors, again headed “Subject to Contract / Contract Denied”, McInerney Solicitors provided, inter alia, an inventory of contents included, and then stated:-

“In the meantime please note we have no authority to bind our client to a contract and no contract shall be deemed to be in existence until such tie (sic)

as contracts have been signed by the purchaser and vendor and exchanged and the deposit paid and accepted.” (underlined for emphasis).

It should be noted that this stipulation mirrored the stipulation referred to earlier in the correspondence from the Purchaser’s Solicitors of 23 June 2023. This letter from the Vendors’ Solicitors was also omitted in the correspondence introduced in evidence in these proceedings on behalf of Mr. O’Neill, pursuant to Chapter 3 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020.

15. There were some further emails and letters exchanged between the solicitors for the Vendors and the Purchaser in July 2023 dealing with some of the queries and issues that had been raised such as the questions around the issue of VAT. For example the Vendors’ Solicitors by letter of 10 July 2023 (again headed “Subject to Contract / Contract Denied”) called on the Purchaser to complete “the purchaser statement in the Pre Contract VAT Requisitions.” By email of 10 July 2023 the Vendors’ Solicitors sent over an inventory of contents which referenced items such as furniture, fridges, cookers, washing machines and an industrial fryer. A query was raised on behalf of the Purchaser as to whether or not the contents of the “4 bed house” were to be included. In addition this email was headed “Subject to Contract / Contract Denied” and contained the same paragraph as that contained in Mr. Killilea’s first letter of the 23 June 2023, as follows:-

“In the meantime, please note that I do not have my client’s authority by this or any subsequent correspondence to bind it to the matter and no agreement shall be deemed to exist between our respective clients until such time as contracts are signed, the deposit thereunder paid and accepted and contracts are duly exchanged. Nothing herein shall constitute a note or memorandum for the purposes of section 51 of the Land and Conveyancing Law Reform Act. 2009.”

(underlined for emphasis).

16. On the other hand, while the letter of 5 July 2023 from the Vendors’ Solicitors had also referenced the requirement for contracts to be “exchanged”, some of her other letters simply stated:-

“In the meantime please note we have no authority to bind our client to a contract for sale and no contract shall be deemed to be in existence until such time as contracts have been signed by the purchaser and the vendor and the deposit paid by the purchaser and accepted by the vendor.”

In other words, some of these letters did not include the stipulation that, from the Vendors’ perspective, contracts were required to be “exchanged”.

17. From the 10 July 2023, the Vendors’ Solicitors then began to request that the Purchaser would sign the contracts for sale and pay over the deposit. While the letter from the Vendors’ Auctioneer of 15 June 2023 had indicated that “Deposit: Not required”, the contracts for sale specified a deposit of 10% of the purchase price.

18. On 26 July 2023 the contracts of sale were signed on behalf of the Purchaser. On or around the 26 July 2023 the deposit amount of €142,500 was transferred to the Vendors’ Solicitors nominated account. By letter of 28 July 2023 the contracts of sale as signed on behalf of the Purchaser were sent from the Purchaser’s Solicitors to the Vendors’ Solicitors. This letter was again headed “Subject to Contract / Contract Denied” and stated:-

“I now enclose herewith signed Contract for Sale in duplicate. Please note that I have deleted the vat clause and special condition 17 as agreed in correspondence and I have transferred the deposit to your nominated client account and would be obliged if you would acknowledge safe receipt once received.

I await receipt of one part Contract for Sale executed by the Vendors.”

(underlined for emphasis).

19. A closing date had still not been agreed. On 1 August 2023 the Purchaser’s Solicitors sent the Vendor’s Solicitors an email headed “Subject to Contract / Contract Denied”

and stating:-

“I await receipt of one part Contract executed by the Vendors & in the meantime I would suggest a closing date of 4 weeks from exchange of Contracts.”

20. On 2 August 2023 the Vendors’ Solicitors sent an email to the Purchaser’s Solicitors with some queries. This email was headed “Subject to contract / contract denied”.

21. On 3 August 2023 Mr. O’Neill signed the contracts.

22. While there was a dispute as to the date of the next event, both Mr. O’Neill and the representatives of the Purchaser agreed that there was a meeting at the Property (either on 3 August 2023 or on some date between 8 and 10 August 2023) which was attended by the Purchaser’s representatives and their builder and the wife of one of the representatives of the Purchaser who happened to be an architect. At this juncture the Purchaser was exploring whether or not the four bedrooms that had been used as a private residence by Mr. O’Neill could be incorporated back into the hotel and covered by the hotel’s fire certificate. In addition, Mr. O’Neill claimed that on this occasion there were various acts of “part performance”. He said that the representatives of the Purchaser said they would not “back out” of the contract. He claimed that the builder placed various pencil markings on walls. He also said that the Purchaser “removed” a coal bunker from the Property. Finally, Mr. O’Neill claimed that some representatives of the Purchaser stayed on after this meeting and celebrated with him in the bar of the hotel over drinks.

23. On Friday evening 11 August 2023, the contracts of sale were signed by Ms. Buckley who resided in Dublin. These signed contracts were apparently only returned by courier to the Vendors’ Solicitors the following week.

24. In the meantime, according to the evidence from the Purchaser’s representatives, for reasons connected to the issues referenced above about the difficulties with the fire certificate and incorporating the additional four bedrooms into the hotel, they decided on or around 8 August 2023 to withdraw from the contract. The proposed purchase would not be financially viable as an IPAS centre, they explained, if only ten bedrooms were available. They explained that they were advised that the contract had not become binding as executed contracts had not been exchanged. Accordingly they instructed the Purchaser’s Solicitors to withdraw from the proposed transaction.

25. Accordingly, on Tuesday 15 August 2023 the Purchaser’s Solicitors wrote by letter to the Vendors’ Solicitors. The letter of 15 August 2023 was headed “Subject to Contract / Contract Denied” and stated as follows:-

“We note that we have not received a Contract executed by the Vendor from you and as such we are now instructed by our client that it does not now wish to proceed with this purchase. Please arrange to return our client’s deposit and we await hearing from you in this regard at your earliest convenience.”

26. This letter was also sent by email and was copied by email to Lohan & Co. Solicitors who were Mr. O’Neill’s personal solicitors and who represented Mr. O’Neill in these proceedings.

27. Mr. O’Neill in his evidence on Day 1 of these actions claimed that he was not told that the Purchaser had withdrawn from the contract until early September 2023. He maintained that position in his direct evidence, under cross-examination, during his reexamination and in reply to questions from the Court. In addition, this letter of 15 August was not included by Mr. O’Neill in the booklet of correspondence put forward on his behalf by his solicitors as evidence pursuant to Chapter 3 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020.

28. From 15 August 2023 Mr. O’Neill’s narrative of events diverged from what the correspondence discloses. He claimed during his evidence throughout Day 1 that as far as he was concerned, once Ms. Buckley had signed the contracts on 11 August there was a binding contract in place for the sale of the Property. He then described a series of events whereby he suggested that the representatives of the Purchaser began to “beg”

him to renegotiate the purchase and accept €1million. He claimed that they admitted to him that they had made a “terrible mistake”. He said that he had turned down these approaches and simply wanted the Purchaser to stick to the contracts “signed”. He said he only learned later on, by early September 2023, or late August at the earliest, that the Purchaser had sought to withdraw from the contract. That was too late as far as he was concerned. The contracts had been signed by all parties by 11 August 2023. He denied in cross examination that he had ever accepted the €1million offer.

29. The documents introduced in evidence indicated that on the 16 August 2023 (the next day after the withdrawal letter) the Vendors’ Solicitors wrote to the Purchaser’s Solicitors in a letter headed “Subject to Contract / Contract Denied” as follows:-

“We were most surprised to have received your nature of the 15th inst. We now hold contracts signed by both vendors, ready to return one part to you but note that your client no longer wishes to proceed. We would be grateful if you would confirm the reason your client has decided not to proceed, at this late stage.

This being the case, please return all documentation furnished to you in this matter and let us have your client account details for the return of deposit.”

(underlined for emphasis).

This letter was written by the Vendors’ Solicitors who had been responsible for the correspondence that flowed on behalf of both Vendors. Mr. O’Neill did not call Ms.

Prendergast as a witness. Nor was this letter submitted on behalf of Mr. O’Neill as part of his evidence pursuant to Chapter 3 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020

30. According to the evidence of the representatives of the Purchaser, on the 16 August 2023, the day after the formal withdrawal from the proposed purchase, they indicated to Mr. O’Neill that they would only now offer €1million due to the fact that the Property, in effect from their perspective, only had ten bedrooms that could be used for an IPAS centre. They claimed that Mr. O’Neill, who they said was aware that they had withdrawn from the contract, actually accepted this offer on 17 August 2023 through the Vendors’ Auctioneer, Mr. Regan. Mr. Craughwell produced a text message from Mr. Regan (the Vendors’ Auctioneer) which stated:-

“Larry we have agreement to sell at €1,000,000. Will you please call me on same. Frank”.

31. Mr. Craughwell then explained that he then received a further text from Mr. Regan shortly thereafter (eleven minutes later) withdrawing this text. This second text was produced in Court and stated as follows:-

“Larry, I wish to withdraw my last text to you stating that that (sic) I had permission to accept your offer of €1,000,000 as I just received a call from Tom O'Neill advising me that he didn't wish to accept your offer because of legal advice he received. Sorry about all this and I wish you and your colleagues well.

Frank Regan”

32. Mr. Regan, who acted in this matter on behalf of both Vendors, was not called by Mr.

O’Neill to give evidence.

33. In the context where the letter of withdrawal had been emailed to Lohan & Co.

Solicitors on the 15 August 2023, Mr. O’Neill was invited to reflect on his evidence that he knew nothing of any purported withdrawal until September or late August at the earliest. He was asked about communications in the days immediately after 15 August 2023. Mr. O’Neill admitted that he had received emails but said that these had not been about any withdrawal by the Purchaser. The Court directed that these emails be produced. This was objected to initially by Counsel for Mr. O’Neill on the basis that they were privileged. That objection was then not stood over. Next, it was said that Mr. O’Neill’s solicitor did not have these emails in Court. Mr. O’Neill was directed to produce the emails the next day. On the morning of Day 2 an email from Mr. Regan to Mr. O’Neill was handed in to Court by Mr. O’Neill’s counsel. This was an email from Mr. Regan, the Vendors’ Auctioneer, to Mr. O’Neill sent at 07:31 on the 18 August 2023. This email stated as follows:-

“Dear Tom, I refer to your last phone call yesterday, at 18.32 when you instructed me not to accept the €1,000,000 offer from Outeniqua Limited. You stated that this was based on legal advice from your solicitor. When I rang you a few minutes earlier you told me to accept the Outeniqua Ltd. offer of €1,000,000.

On receipt of your acceptance, I immediately telephoned Mr Craughwell, without success and then sent him a text stating that you had accepted the offer, and that this was now acceptable to both parties.

I informed you earlier yesterday that Ms. Nollaig Buckley was prepared to accept the offer of €1,000,000.

Mr. Larry Craughwell, of Outeniqua Ltd. advised me that he had spoken with you on Wednesday afternoon, August 16th and with myself a few times yesterday, Aug 17th, advising that the €1,000,000 offer would be withdrawn by close of business August 17th if it wasn't accepted by you. The board of directors of Outeniqua Ltd. had made this decision.

As you are aware the proposed purchasers withdrew from the sale on Monday, August 14th before contracts were exchanged. They stated that the only reason for withdrawal was that the private residence was not acceptable to IPAS for use as refugee accommodation. This made the overall project non-viable @ €1,425,000 on their books.

Please note that I contacted the highest under-bidder on Wednesday August 16th and on Thursday, August 17th and informed him that the proposed purchasers had withdrawn from the sale. I explained the reason was because that the private residence did not qualify as accommodation for refugees. This under-bidder reduced his offer to €800,000.

The options at this stage are as follows. I contact all parties who made an offer on the property. All, with the exception of one couple, were involved in the provision of refugee accommodation. One couple, from Athlone, viewed it accompanied by an agent from Power Auctioneers. This couple were very interested but needed a commercial mortgage approval before they could make a firm offer.

The rapid rise in interest rates may now have a bearing on the amount of mortgage they can obtain, should they still be in the market.

Another option is to put “Coosan Eco-Lodge” officially back on the open market.

Given that IPAS will not sanction the private residence for provision of refugee accommodation, providers will not find the property as attractive as an investment.

In my opinion, given the changed circumstances, you should consult with your solicitor again this morning and re-consider the offer, which hopefully can be re-kindled if you act now.

Kind regards, Frank Regan SUBJECT TO CONTRACT / CONTRACT DENIED / WITHOUT PREJUDICE This e-mail is sent on the instructions of Frank Regan, Principal, Frank Regan and Associates”

(underlined for emphasis).

34. Later that morning at 10:54 on 18 August 2023 Mr. Lohan sent an email to Mr. Regan which was copied to Ms. Prendergast and to Mr. O’Neill stating as follows:-

“Dear Frank, Tom has asked me to reply to you.

Please note that we have already instructed [Ms. Prendergast of McInerney Solicitors] to return one part contract as a formality but our position is that there is a contract in place already. They have no right to withdraw now. There was no condition re IPAS qualifying rules whatsoever. The contracts are good and we will deal with the purchaser if they do not complete. We believe that games are being played here particularly considering the reduced offer.

Please note that all these emails and communications are private and confidential between us.

Please also note that no further communication should be made with the purchasers unless same is agreed by all of us in the circumstances.

Kind regards, Cormac Lohan”

35. Consequently, later on 18 August 2023, the Vendors’ Solicitors wrote to the Purchaser’s Solicitors as follows:-

“We enclose herewith one part contract signed by the purchaser and both vendors, dated the 11th of August 2023.”

36. Correspondence between the parties then ensued and the Purchaser commenced proceedings on the 4 October 2023 to recover the €142,500 paid as deposit. Thereafter on 10 October 2023 Lohan & Co. (who were not the solicitors appointed to deal with the transaction on behalf of the Vendors) sent a Completion Notice to the Purchaser’s Solicitors.

37. Mr. O’Neill then commenced proceedings on the 10 November 2023 seeking, inter alia, specific performance of the contract entered into “on or about 11 August 2023”.

III. SUBMISSIONS

(i) The Purchaser’s Submissions

38. The Court received helpful oral and written submissions from Counsel for the Purchaser. The essence of his case was straightforward. He said that the evidence demonstrated that it was the clear intention of the parties that there would be no binding contract until contracts had been signed, the deposit paid and received and then signed contracts exchanged. He said this was made clear in the very first letter sent in relation to the transaction from the Purchaser’s Solicitors. This had never been retracted by the Purchaser’s Solicitors nor objected to by the Vendors’ Solicitors, whom, he pointed out had said the same thing in their letter of 5 July 2023.

39. He submitted that it was not factually in dispute that contracts had not been exchanged at the time that the Purchaser withdrew from the proposed transaction. Accordingly he said, citing the Supreme Court decision in Embourg Ltd. v Tyler Group Ltd. [1996] 3 IR 480, there was no binding and enforceable contract and that consequently the purchaser was entitled to the return of its deposit.

40. Counsel helpfully drew the Court’s attention to the Law Society’s Conveyancing Manual, April 2023 and para. 2.2.1.16 in particular. This extract helpfully describes the legal position that pertains to a factual context such as the one that existed in this case, he submitted.

41. He said the belated claim of an “oral contract” had no substance and was not in event ever pleaded. He said that Mr. O’Neill had never spoken with the representatives of the Purchaser prior to the correspondence between the parties commencing and from the beginning (including from the letter from the Vendors’ Auctioneer of 15 June 2023)

it was clear that the negotiations were proceeding on a “subject to contract / contract denied” basis which contradicted clearly any suggestion of an oral contract having been entered into prior to then.

42. He also submitted that the actions alleged to constitute part performance either did not happen or could not in principle amount to part performance. More fundamentally, he submitted that part performance was irrelevant in a case such as this where there was in fact no concluded contract, see Mackie v Wilde (No. 2) [1998] 2 IR 578 (“Mackie v Wilde”).

(ii) The Submissions on behalf of Mr. O’Neill

43. Counsel for Mr. O’Neill made helpful oral and written submissions. The pleaded case on behalf of Mr. O’Neill claimed that there was a concluded contract on either the 26 July 2023 (when the contracts of sale were signed on behalf of the Purchaser) or on 11 August 2023 (when the contracts of sale had also been signed by both Mr. O’Neill and Ms. Buckley). The pleadings on behalf of Mr. O’Neill contained no claim of an oral contract. Para 6 of the Statement of Claim in the action where Mr. O’Neill is the Plaintiff pleads:-

“6. In the premises there is a valid and binding contract in writing and signed by the defendant against whom this action is brought with effect from 26 July 2023 alternatively 11 August 2023.”

44. The same plea is in effect made in the Defence delivered by Mr. O’Neill in the proceedings in which he is the second named defendant, where he pleads at para. 2(c)

thereof as follows:-

“2(c) In the premises there is a valid and binding contract in writing and signed by the plaintiff with effect from 26 July 2023 alternatively 11 August 2023.”

45. In the written submissions delivered on behalf of Mr. O’Neill in the action in which he is the Plaintiff there is no claim of an oral contract. The “Summary of Facts” asserts that:-

“1. In this action, the Plaintiff [Mr. O’Neill] seeks specific performance of a written and signed contract of sale for [the “Property”] or damages for breach of contract in not completing the contract.

…

4. Between the two proceedings, the central issue is: did a binding and enforceable Contract come into existence on its execution on or by 11 August 2023 or did it not.”

46. In the subsequent written submissions delivered on behalf of Mr. O’Neill in the action in which he is the second named defendant it is stated that Mr. O’Neill’s primary submissions are set out in the written submissions delivered in the case in which he is the Plaintiff. However, at para. 28 of the submissions where Mr. O’Neill is the defendant, the following appears:-

“28. As of 15th June 2023, there was an oral agreement to sell existed insofar as the Auctioneer’s was in being.” (sic).

This sentence is unclear but seems to indicate that an oral agreement is being alleged and maybe intends to refer to the letter of Mr. Regan, the auctioneer of 15 June 2023.

47. Para. 28 of these submissions of Mr. O’Neill then continues as follows:-

“As of the 11th August 2023 a Memorandum was executed by all parties.

Crucially, the intentions of the parties at the time of signing the latter were to be bound by it from the date of signature, and thereafter none of the parties, including Mr. O’Neill and Ms. Buckley, could withdraw without the written agreement of the other parties.”

48. In his oral submissions at the conclusion of the case, Counsel for Mr. O’Neill claimed there was an oral agreement between the parties which was recorded in the letter of the Vendors’ Auctioneer of 15 June 2023 and which was then encapsulated in the written contract signed by the Purchaser on 26 July 2023 thereby meeting the requirements of section 51 of the Land And Conveyancing Law Reform Act 2009.

49. Counsel submitted that the references to “Subject to Contract / Contract Denied” in the various letters from both sides solicitors could essentially be discounted in some way because an oral agreement had already been reached by 15 June 2023. This oral agreement, he submitted, contained agreement on all the essentials; namely the property, the parties and the price and there were no other significant particulars of note.

Furthermore, in these letters, he submitted that the solicitors had each disclaimed that they had any authority to bind their clients and that therefore, these letters could be discounted.

IV. RELEVANT LEGAL PRINICPLES

50. The Supreme Court decision in Embourg Ltd. v Tyler Group Ltd. [1996] 3 IR 480 (“Embourg”) is very relevant to this dispute. The facts of Embourg are helpful summarised in the headnote in the Irish Reports:-

The second plaintiff wished to purchase the defendant's property. An agreement as to price was reached between H.M. on behalf of the defendant and B.H. on behalf of the second plaintiff. This agreement was evidenced in writing by a letter dated the 20th September, 1994, written on behalf of the defendant. The said letter was headed "subject to contract" and set out the terms of the agreement as to price and deposit and nominated solicitors for the vendor and the proposed purchaser. The second plaintiff paid the deposit as agreed, and this was acknowledged by a letter from the defendant's solicitors which stated that no binding contract was deemed to exist until a contract was executed by the parties. In the course of correspondence which followed, both parties maintained that no binding contract had been entered into. However, there was some uncertainty arising from the correspondence as to whether the contract became binding upon execution or upon exchange.

The contract of sale was executed by the second plaintiff in trust for the first plaintiff and two signed copies were returned to the defendant's solicitors on the 25th January, 1995. In reply the defendant's solicitors dealt with title queries which had been raised by the plaintiffs and stated that they were arranging to have the contracts executed by their client. No executed copy of the contract was ever furnished by the defendant's solicitors to the plaintiffs. It subsequently transpired that the copies of the contract executed by the second plaintiff had in fact been signed on behalf of the defendant in February, 1995, but had been sent to the defendant's solicitor on the express instructions that the executed contract not be furnished to the plaintiffs' solicitors until further direction.”

51. In Embourg, the High Court held that there had been no intention to conclude a legally binding contract, pending a direction on behalf of the defendant to its solicitor to deliver the executed contract to the plaintiffs' solicitors. The plaintiffs appealed alleging inter alia that the High Court judge had erred in holding that, notwithstanding the execution of a formal contract of sale, an actual exchange of contracts was necessary to conclude the contract. The Supreme Court dismissed the appeal, Blayney J. gave the judgment for the Court. On the issue about when a binding contract came into existence Blayney

J. states as follows:-

“The two parts of the contract duly completed by the plaintiffs were returned to the defendant's solicitors on the 25th January, 1995, with a request to return one part duly completed by their client in early course. The return of the two contracts duly completed was clearly an offer by the plaintiffs to purchase on the terms set out in the contracts. That offer could have been accepted by the defendant by communicating their acceptance of it to the plaintiffs' solicitors.

And the form of that communication would have been the sending to the plaintiffs' solicitors of one part of the contract duly executed on behalf of the defendant. But the offer was never in fact accepted. Neither part of the contract signed on behalf of the defendant was ever sent to the plaintiffs' solicitors, so the two parts of the contract signed by the plaintiffs continued to be no more than offers. In the absence of a communicated acceptance no contract ever came into being.

In the leading case of Carlill v. Carbolic Smokeball Company [1893] 1 Q.B.

256, Lindley L.J. said in the course of his judgment at p. 262:—

"Unquestionably, as a general proposition, when an offer is made, it is necessary in order to make a binding contract, not only that it should be accepted, but that the acceptance should be notified."

Since the defendant never communicated to the plaintiffs an acceptance of the plaintiffs' offer to purchase, no contract ever came into existence and so there is no contract of which the plaintiffs could claim specific performance.

It follows that the plaintiffs' appeal must be dismissed on the grounds that there was never any contract between the plaintiffs and the defendant.

In my opinion it must also be dismissed on the second ground urged by Mr.

Durcan, namely, that no binding agreement came into existence because contracts had never been exchanged.”

Then later in the judgment, Blayney J. states as follows:- “The usual practice adopted in this country in regard to the execution of a contract for the sale of land is described as follows in Wylie's Irish Conveyancing Law (1st Ed., 1978) at p. 377:— "Normally what happens is that the purchaser's solicitor gets his client to sign the contract, as approved, first and sends this signed copy to the vendor or his solicitor for 'acceptance'. This may be accompanied by a letter from the purchaser's solicitor to the effect that his client will not regard himself as bound by the contract until the vendor has signed the contract."

This was clearly not the practice adopted in the present case as two copies of the contract were sent to the purchaser's solicitors and it was clearly the intention of the parties that one of the copies returned signed by the purchasers would be signed by the vendor and sent back to the purchasers' solicitors. This would have effected the intended exchange of contracts and as this was never done no binding contract came into existence.”

(underlined for emphasis).

52. The conclusion in Embourg is linked to its particular facts which include the correspondence and the conclusion of fact that it was the intention of the parties that one of the copies of the contracts as signed by purchaser would then be signed by the vendor and returned to the purchaser’s solicitors to thereby signify acceptance of the purchaser’s offer.

53. Next, given the references to “Subject to Contract / Contract Denied” in the solicitors’ correspondence, it is useful to refer to the Supreme Court decision in Boyle v Lee [1992]

1 IR 555 where O’Flaherty J. states at page 584 in his conclusion on this topic of an alleged oral agreement followed thereafter by correspondence headed “subject to contract”:-

(3) The expression "subject to contract" or "subject to a formal contract being drawn up" or the like is prima facie a strong declaration that a concluded agreement does not exist. I would hold that there must be cogent evidence of a contrary intention before such a phrase is put to one side. I would equate it to "existence of contract denied” …

(4) Even if an oral agreement is concluded, and it is not itself made "subject to contract" or the like, nevertheless if the initiating correspondence thereafter contains that or a similar phrase, this involves that there is not a recognition, express or implied, of the existence of an oral agreement in the sense of one meant to be a binding contract.”

54. The relevant statutory provision is contained in section 51 of the Land And Conveyancing Law Reform Act 2009, which provides as follows:-

51.— (1) Subject to subsection (2), no action shall be brought to enforce any contract for the sale or other disposition of land unless the agreement on which such action is brought, or some memorandum or note of it, is in writing and signed by the person against whom the action is brought or that person’s authorised agent.

(2) Subsection (1) does not affect the law relating to part performance or other equitable doctrines.

(3) For the avoidance of doubt, but subject to an express provision in the contract to the contrary, payment of a deposit in money or money’s worth is not necessary for an enforceable contract.

55. Then, as indicated above, helpful reference was made to para. 2.2.1.16 of the Law Society’s Conveyancing Manual, April 2023 where the authors cite both Embourg and Boyle v Lee and then states as follows:-

“The following general conclusions can be arrived at from a consideration of the cases and the general law of contract:

(a) The use of the term ‘subject to contract’ in correspondence will, except in rare and exceptional cases, establish the non-existence of a previously concluded oral contract for the purpose of excluding the provisions of section 51 of the 2009 Act.

(b) The issue of a contract by a vendor’s solicitor under the protection of the term ‘subject to contract’ is an invitation to treat only and not an offer to sell.

(c) The return of this contract signed by the purchaser is an offer to purchase and is not an acceptance of an offer from the vendor.

(d) The return of this contract signed by the vendor is an acceptance of the offer to the purchase by the purchaser.

(e) A concluded contract binding on both parties will come into existence when all of the steps at (b), (c), and (d) have taken place.

(f) The vendor is not bound until they have returned the contract to the purchaser or their solicitor duly signed.

(g) The purchaser is not bound until the vendor has signed the contract and returned it as it would be open to the purchaser to withdraw the offer prior to its acceptance by the vendor, provided such withdrawal is notified to the vendor before the vendor accepts the offer and notifies the purchaser of the acceptance. This will only apply if the purchaser's offer is not made or deemed to be irrevocable until accepted or rejected by the vendor, a practice that is unknown in this jurisdiction.

(h) The uncertainty as to when the parties on both sides become contractually bound would be removed if the above practice of exchanging contracts became the norm. However that is not the current practice in Ireland.”

These general conclusions are extremely helpful and will be considered further below in the context of their application to the facts of this case.

56. Finally, reference was made by counsel for Mr. O’Neill to the decision of Clarke J. (as he then was) in Greenband Investments v Burton & Ors [2009] IEHC 67 where he states at para.s 5.2 to 5.4:-

“5.2 At one end of the spectrum it may be clear from the statements or actions of those involved that any discussions which parties may have concerning the terms on which they might be prepared to enter into contractual arrangements are not, themselves, intended to create a contract. Parties may enter into discussions for the purposes of identifying the terms on which they might be prepared to contract but may expressly, or by implication, do so on the basis that no contractual relations will be entered into until such time as formal written contracts have been executed by all of the parties. In such circumstances no oral agreement can be said to come into existence which amounts to a binding contract, for the parties do not have in their contemplation that their oral discussions will lead to contractual relations.

5.3 In those circumstances it is only if the process leading to the finalisation of a written agreement reaches the stage where it can be said that that written agreement amounts to binding contractual arrangements between the parties, that there can be said to be any contract in existence. It will be necessary to return to this question in the context of dealing with the issues which have arisen between the parties arising out of the fallback position adopted by Greenband to the effect that there is a written contract in this case.

5.4 However, parties may also enter into oral discussions which can not be properly characterised as involving either an express or an implied intention that the discussions concerned should not, if successful, to give rise to a contract between the parties. In such circumstances, provided all of the relevant prerequisites for a binding contract are in place, then there is no reason why a court should not conclude that there is an oral agreement between the parties which amounts to a contract. It will, of course, be the case that any such oral agreement will not be enforceable unless and until there comes into existence a note or memorandum sufficient to satisfy the Statue of Frauds or a sufficient act of part performance to render it inequitable to allow a party resisting enforcement of the contract to rely on the absence of such a note or memorandum. However, these latter issues are, of course, only concerned with the enforceability of the contract rather than whether there is a contract in the first place.”

57. These dicta of Clarke J. (as he then was) in Greenband provide a useful description of the ambit of factual scenarios they may typically arise in these situations.

V. DECISION

58. There are a number of matters in dispute that consist, in whole or in part, of factual issues. The most important, in terms of its effect on the outcome of this case, is the fourth issue listed below. However, in light of the submissions made and the evidence given at trial, I propose to address each of these issues, namely:-

(i) Was there a concluded oral agreement on or before 15 June 2023?

(ii) Were there acts of part performance by the Purchaser?

(iii) Did the Purchaser try to renegotiate the proposed purchase of the Property while under contract?

(iv) Was it the intention of the parties that one of the contracts as signed by the Purchaser would then be signed by the Vendors and returned to the Purchaser’s solicitors to thereby signify acceptance of the Purchaser’s offer?

59. Some of these questions involve considering some of the legal principles relevant to the issues in this case. Each of the above questions will now be considered in turn.

(i) Was there a concluded oral agreement on or before 15 June 2023

60. I am satisfied that as a matter of fact a concluded oral agreement was not reached between Mr O'Neill and the Purchaser at any time.

61. Firstly there was no direct conversations at any time prior to the correspondence between the solicitors commencing between Mr O’Neill and any representatives of the Purchaser. As a result of the orders made as part of the divorce, Mr. Frank Regan was appointed as the auctioneer in relation to the Property. He did not conduct an auction but rather invited bids in respect of the Property. The Purchaser made the joint highest bid and Mr. Regan recommended the Purchaser to the Vendors as they had proof of funds. Mr O'Neill decided not to call Mr Regan as a witness. However Mr. Regan's letter of 15 June 2023 was introduced in evidence through Chapter 3 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020. In my view this letter which was written by the Mr. Regan on behalf of the Vendors is not consistent with any contention that there was a concluded oral agreement as a result of any discussion between Mr. Regan and the representatives of the Purchaser. Firstly the letter in its heading explicitly denies that there is a contract. Secondly, in its heading it says the matter is “Subject to Contract”. As the authorities referred to above make clear, in general, it will be an exceptional case where this language does not mean what it says.

This is not such a case.

62. In addition, the behaviour of the parties thereafter is also not consistent with there being a concluded oral agreement at this time. Rather, this letter is consistent with a scenario whereby the parties had agreed to move forward into a formal phase involving their respective solicitors with a view to reaching a concluded binding and enforceable written agreement. To that extent, the situation here is akin to what Clarke J. describes in para. 5.2 of Greenband above, namely:-

“…discussions which parties may have concerning the terms on which they might be prepared to enter into contractual arrangements are not, themselves, intended to create a contract. Parties may enter into discussions for the purposes of identifying the terms on which they might be prepared to contract but may expressly, or by implication, do so on the basis that no contractual relations will be entered into until such time as formal written contracts have been executed by all of the parties. In such circumstances no oral agreement can be said to come into existence which amounts to a binding contract, for the parties do not have in their contemplation that their oral discussions will lead to contractual relations.”

63. The conduct of the parties after 15 June 2023 is consistent with the parties considering that they had simply agreed to move forward into a phase of negotiations designed to lead to a formal written agreement for the sale of the property. Each side engaged solicitors. The solicitors acting on behalf of the Vendors were, by virtue of the order made as part of the divorce, McInerney Solicitors. Their first letter is headed “Subject to Contract / Contract Denied”. This correspondence is inconsistent with the idea of a concluded oral agreement having been reached.

64. Mr. O’Neill did not call Ms. Prendergast. Rather he sought to introduce her correspondence as evidence pursuant to Chapter 3 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020. This correspondence is not consistent with the contention of a concluded oral agreement.

65. In addition, there were, not surprisingly, further matters that had to be agreed. Mr.

Regan’s letter of 15 June 2023 provides that a deposit was not required. However, this was not what was ultimately agreed. In addition, when the contracts of sale were provided by the Vendors Solicitors it is clear that this was an invitation to treat only and not an offer to sell. This is demonstrated by the subsequent correspondence where further adjustments were made to these documents including for example the deletion of special condition 17 and the efforts to agree a closing date.

66. In addition, the evidence of Mr O'Neill was not consistent with an oral contract. It was clear from his evidence that even he only considered there to be a contract when the contracts of sale were signed by all sides.

67. Accordingly, the argument made in closing submissions by Counsel for Mr. O’Neill that there was a concluded oral agreement was not reflected in the evidence of Mr O'Neill.

68. Finally, the failure to plead a concluded oral agreement in either set of proceedings or to mention it in the first set of written submissions delivered on behalf of Mr. O’Neill suggests that this argument was somewhat of a reaction to the submissions being made on behalf of the Purchaser. Counsel for Mr. O’Neill however did not apply to amend his case. The failure to plead this case on one view would be enough to rule it out.

However, since it so obviously fails on its merits, the argument that Mr. O’Neill reached a concluded oral agreement to sell the Property to the Purchaser is rejected on factual grounds for the reasons set out above.

(ii) Were there acts of part performance by the Purchaser?

69. Mr. O’Neill contented that there were various acts of part performance by the Purchaser. These include various pencil markings on the walls of the hotel made by the

Purchaser’s builder and the alleged “removal” of a “coal bunker”. As part of this narrative, Mr. O’Neill claimed that representatives of the Purchaser said they would not be pulling out of the purchase at a visit to the hotel in early August which he claimed concluded with celebratory drinks in the hotel bar.

70. For reasons set above I am satisfied that there was not a concluded oral contract between the parties. That alone is enough to dispose of this question of part performance; see Mackie v Wilde (No. 2) cited above, where Barron J. states:-

“what is essential is that:-

(1) there was a concluded oral contract;

(2) that the plaintiff acted in such a way that showed an intention to perform that contract;

(3) that the defendant induced such acts or stood by while they were being performed; and

(4) it would be unconscionable and a breach of good faith to allow the defendant to rely upon the terms of the Statute of Frauds to prevent performance of the contract.”

71. However, in relation to the factual allegations made by Mr. O’Neill on this topic, I did not find his evidence convincing or reliable, either overall or on this specific topic.

72. Firstly, on Day 2 of the trial Mr. O’Neill apologised for his evidence during Day 1. He explained that he had not had a good night's sleep prior to the trial commencing and had suffered from some unspecified type of “brain freeze”. This apology and explanation was primarily offered to explain his inaccurate evidence in relation to his contention that he had not been informed of the Purchaser’s withdrawal from the contract until early September, or late August at the earliest. That evidence was given by him to give a credibility to his false narrative to the effect that the representatives of the Purchaser had “begged” Mr. O’Neill during the second half of August 2023 to renegotiate the contract because they had made “a terrible mistake”. Even that explanation (of a lack of sleep and a “brain freeze”) is difficult to accept, as the false narrative he gave during his evidence on Day 1 was in keeping with the misleading account of events contained in his prepared witness statements submitted in advance of the trial.

73. However, specifically, I found Mr. O’Neill’s evidence about the alleged part performance to be unreliable. The claim that the Purchaser had “removed a coal bunker” was false and misleading. I accept Mr. Simpson’s evidence that an old coal bucket with a broken handle worth less than €50 was offered to his wife at their visit to the hotel on 3 August 2023. It was given as a gift by Mr. O’Neill. I am satisfied that Mr. O’Neill falsely sought to recharacterise this event to bolster a legal claim of part performance.

74. Secondly, I am satisfied that Mr. O’Neill’s evidence that representatives of the Purchaser started to come and go at the hotel unannounced as they pleased is also false and misleading. His evidence in this regard was vague and, even though he was willing to offer incorrect specifics about when he learned of the withdrawal of the Purchaser, he offered no specifics on this topic. On the other hand the evidence of both Mr.

Craughwell and Mr. Simpson was clear. They confirmed that they had never attended unannounced. They had attended on the 3 August by arrangement. They referred to text messages and a diary entry in this regard. Mr. Simpson had travelled up from Wexford and was clear and straightforward in his evidence that he would not have done this, much less with his wife (the architect), had the attendance not been arranged. They also said, and I accept their evidence in this regard, that their builder made a number of pencil markings on some walls with the agreement of Mr. O’Neill.

75. In the wider context, these pencil markings and the gifted coal bucket are wholly insignificant and do not amount to anything of the sort of action or conduct that could engage the consideration of the doctrine of part performance, as summarised above in the dicta from Barron J. in Mackie v Wilde (No.2).

(iii) Did the Purchaser try to renegotiate the proposed purchase of the Property while under contract?

76. It might not seem obvious as to how this issue affects the outcome of the case, however it was very much at the heart of Mr. O’Neill’s narrative and sense of complaint against the Purchaser. Throughout Day 1 of the trial (in his direct evidence, in crossexamination, in re-examination and then in answer to questions from the Court) Mr.

O’Neill maintained a steadfast position that from mid-August onwards the representatives of the Purchaser had sought, while under contract (the contracts having been signed and exchanged by 18 August 2023), to renegotiate the deal. To maintain this narrative, Mr. O’Neill insisted that he only learned later, in early September 2023, or late August 2023 at the earliest, that the Purchaser had withdrawn from the purchase.

77. When questioned about whether his solicitor (who, after all, had been copied on the withdrawal letter of 15 August 2023) had told him about it, he claimed he had not, until early September 2023, or late August 2023 at the earliest. The truth is that his solicitor informed him of the withdrawal (and advised him about it apparently) at the time.

78. When Mr. O’Neill was asked about contact from his solicitor Mr. Lohan during this time he asserted (falsely) that the contact was only about other matters. When he was asked about emails about the contract, he claimed (falsely) that they were not about any withdrawal.

79. When the Court directed that these emails be produced, two objections were made.

First, it was claimed they were privileged. When that position was not stood over, it was said that the solicitor did not have them in Court. Only when they were produced the next day on Day 2 did Mr. O’Neill apologise for his evidence and offer the explanation about a lack of sleep and a brain freeze. This explanation is unsatisfactory, not least because the prepared witness statements of Mr. O’Neill contain the same false narrative.

80. I prefer the evidence of the Purchaser’s representatives on this issue. Their evidence was clear and was reflected in the text messages they had with Mr. Regan. This evidence was confirmed by the email sent by Mr. Regan to Mr. O’Neill, belatedly produced on Day 2. The evidence shows that the Purchaser withdrew on 15 August 2023, before any signed contracts were exchanged. When they withdrew, Mr. O’Neill was informed. In addition, the response of the Vendors’ Solicitors by letter the next day was not to object or claim any binding contract, but rather to look for bank account details to enable the deposit to be returned. In addition, the response of Mr. Regan (the Vendors’ Auctioneer) was to consider and recommend the new offer of €1million and the evidence confirms that Mr. Regan on behalf of Mr. O’Neill actually had his express permission to accept the €1million offer, albeit that permission was withdrawn shortly thereafter.

81. I reject as utterly implausible the evidence of Mr. O’Neill that the representatives of the Purchaser begged Mr. O’Neill to renegotiate the proposed purchase. It is not consistent with any of the documentary evidence or the reaction of any of the parties to the unfolding dynamic.

(iv) Was it the intention of the parties that one of the contracts as signed by the Purchaser would then be signed by the Vendors and returned to the Purchaser’s solicitors to thereby signify acceptance of the Purchaser’s offer?

82. The correspondence referred to above in the ‘Background’ section of this judgment was admitted in evidence either by agreement or pursuant to Chapter 3 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 which provides for the admission of business records in civil proceedings as “evidence of any fact in the document”.

These statutory provisions do not preclude the calling of the author of the documents.

83. In this case, these letters were exchanged between the appointed solicitors for both the Purchaser and the Vendors (including therefore Mr. O’Neill). The correspondence also includes one letter of 15 June 2023 from the Vendors appointed auctioneer. Mr. O’Neill decided not to call evidence from either his appointed solicitor or auctioneer as to what any of this correspondence meant.

84. Furthermore, I am not satisfied that any representative of the Purchaser either said or promised that they would not “back out” or stayed for some kind of celebratory drink in the hotel on either 3 August 2023 or later the following week. This evidence on behalf of Mr. O’Neill was vague and unconvincing. Mr. Craughwell and Mr. Simpson were both clear in their denials that this occurred.

85. In any event, there was nothing about the context of this visit which could have reasonably lead Mr. O’Neill to believe that the legal arrangements around the negotiation and conclusion of the proposed contract for the purchase of the Property were being altered by this visit. The purpose of the visit was to allow the Purchaser’s builder and architect to look at the property – not to recalibrate the circumstances in which a binding contract might come into existence. Mr. O’Neill gave no further evidence suggesting that there was any other context or event that might alter the clear meaning of this correspondence.

86. Before turning therefore to the critical task of assessing the factual import of the correspondence, it is important to note that the issue here is not to see whether or not the correspondence meets some technical rule of general conveyancing practice, it is to assess the correspondence as evidence of the intentions of the parties as to how an offer to purchase the Property was to be accepted.

87. The sensible starting position therefore is to consider the meaning of the formal correspondence and the use of the well-known phrases and clauses therein in the context of the principles as summarised in para. 2.2.1.16 of the Law Society’s Conveyancing Manual, April 2023 set out above in section IV of this judgment. In that regard, it is important to note from that summary in para. 2.2.1.16, that while there is no general rule, or indeed general practice in this jurisdiction, that a contract for the sale of land will only become binding when there is an acceptance that takes the form of the exchange or the return of an executed counterpart contract, that it is nonetheless a recognised and clear way of stipulating the requirement for acceptance. Indeed, as appears from the extract cited above, the authors of the Law Society’s Conveyancing Manual, April 2023 commend it as an approach that will remove uncertainty as to when parties become contractually bound. In addition, it is necessary to take account of the ordinary and established meaning of the words in the correspondence based on how they have been analysed in established case law such as Boyle v Lee and Embourg in particular.

88. As set out above, para. 2.2.1.16 of Law Society’s Conveyancing Manual, April 2023 lists eight “general conclusions” that can be drawn from the case law. It is worth considering each of these in turn in the context of this case.

(a) The use of the term ‘subject to contract’ in correspondence will, except in rare and exceptional cases, establish the non-existence of a previously concluded oral contract for the purpose of excluding the provisions of section 51 of the 2009 Act.

For the reasons set out above, I have already concluded as a fact that there was no concluded oral agreement between the parties. The consistent use of the words “subject to contract” and “contract denied” by both sides solicitors and the Vendors Auctioneer from the 15 June 2023 onwards confirms this understanding of the position.

(b) The issue of a contract by a vendor’s solicitor under the protection of the term ‘subject to contract’ is an invitation to treat only and not an offer to sell.

The Vendors’ Solicitors issued contracts of sale under cover of a letter headed “Subject to Contract / Contract Denied”. I am satisfied that this was simply an invitation to treat only and not an offer to sell.

The correspondence thereafter referred to “pre-contract” enquiries and included the heading “contract denied”. The subsequent events confirm this. Clauses were deleted from the contracts of sale and other matters had to be agreed as described above in the Background section of this judgment.

(c) The return of this contract signed by the purchaser is an offer to purchase and is not an acceptance of an offer from the vendor.

I am satisfied that the when the Purchaser signed the contracts of sale (as adjusted following the correspondence in June and July 2023) on 26 July 2023 and returned them on 28 July 2023 with the payment of the 10% deposit that this represented an offer to purchase the property at the price and on the terms specified in the signed contracts of sale.

It is also important to note that the receipt and “acceptance” of the deposit into the Vendors’ Solicitors bank account does not constitute acceptance of the offer by the Vendors where the parties have stipulated that both sides need to execute the contract and exchange contracts.

The clear terms of the correspondence that had already issued from the Purchaser’s Solicitors made it clear that no contract would become binding until the contracts of sale had been signed by the Vendors and “duly exchanged”.

(d) The return of this contract signed by the vendor is an acceptance of the offer to the purchase by the purchaser.

I am satisfied that this was the clear understanding of the parties as evidenced by the parties through their solicitors correspondence. This is reflected in the first letter from the Purchaser’s Solicitors of 27 June 2023 which concluded by stating as follows:

“In the meantime, please note that I do not have my client’s authority by this or any subsequent correspondence to bind it to the matter and no agreement shall be deemed to exist between our respective clients until such time as contracts are signed, the deposit thereunder paid and accepted and contracts are duly exchanged. Nothing herein shall constitute a note or memorandum for the purposes of section 51 of the Land and Conveyancing Law Reform Act. 2009.”

(underlined for emphasis).

The Solicitors on behalf of the Purchaser never retracted the above statement of intent on behalf of the Purchaser. The Vendors’ Solicitors did not take issue with or make any objection at any stage to this stipulation and in a letter of 5 July 2023 from the Vendors’ Solicitors to the Purchaser’s Solicitors, headed “Subject to Contract / Contract Denied”, it was also stated:-

“In the meantime please note we have no authority to bind our client to a contract and no contract shall be deemed to be in existence until such tie (sic)

as contracts have been signed by the purchaser and vendor and exchanged and the deposit paid and accepted.” (underlined for emphasis).

In other words, this stipulation on behalf of the Vendors mirrored the stipulation referred to earlier in the correspondence from the Purchaser’s Solicitors of 23 June 2023. While this stipulation did not appear in all of the correspondence from the Vendors’ Solicitors, it was never withdrawn by the Purchaser’s Solicitors and no objection was ever taken to it by the Vendor’s Solicitors. Thereafter, when by letter of

28 July 2023 the contracts of sale as signed on behalf of the Purchaser are sent to the Vendors’ Solicitors, the Purchaser’s Solicitors conclude their letter by stating:-

“I await receipt of one part Contract for Sale executed by the Vendors.”

Finally, when a closing date was proposed in an email of 1 August 2023 from the Purchaser’s Solicitors to the Vendor’s Solicitors, the email is headed “Subject to Contract / Contract Denied” and states:-

“I await receipt of one part Contract executed by the Vendors & in the meantime I would suggest a closing date of 4 weeks from exchange of Contracts.”

All of this reflects the initial stipulation that there was to be no binding contract until the Purchaser received a contract duly executed by the Vendors.

(e) A concluded contract binding on both parties will come into existence when all of the steps at (b), (c), and (d) have taken place.

I am satisfied that this statement is correct in the context of the facts of this case and that, as an undisputed fact, there was no exchange of signed contracts prior to the withdrawal of the Purchaser. Furthermore, this conclusion reflects the understanding at

the time of both sides solicitors. The letter of withdrawal of 15 August 2023 was headed “Subject to Contract / Contract Denied” and stated as follows:-

“We note that we have not received a Contract executed by the Vendor from you and as such we are now instructed by our client that it does not now wish to proceed with this purchase. Please arrange to return our client’s deposit and we await hearing from you in this regard at your earliest convenience.” The next day, on the 16 August 2023, the Vendors’ Solicitors wrote to the Purchaser’s Solicitors in a letter headed “Subject to Contract / Contract Denied”. As O’Flaherty J. states in Boyle v Lee the deployment of these words amounts to “a strong declaration that a concluded agreement does not exist”. The letter then stated as follows:-

“We were most surprised to have received your nature of the 15th inst. We now hold contracts signed by both vendors, ready to return one part to you but note that your client no longer wishes to proceed. We would be grateful if you would confirm the reason your client has decided not to proceed, at this late stage.

This being the case, please return all documentation furnished to you in this matter and let us have your client account details for the return of deposit.”

(underlined for emphasis). This letter from the Vendors’ Solicitors, which denies the existence of a contract, in addition does not contest the entitlement of the Purchaser to withdraw from the proposed transaction and indeed clearly indicates an intention on behalf of the Vendors to return the deposit.

As the steps at (b) and (c) above had occurred in this case by 15 August 2023 but not the step described at (d), then it follows that there was no contract binding on both parties at the time the Purchaser notified the Vendors of the withdrawal from the proposed contract.

The approach and reaction of both sides solicitors at the time is consistent with this understanding.

It also may explain why, if only briefly, the facts indicate that Mr. O’Neill and Ms. Buckley both decided to accept the offer of €1m on the 17 August. The facts also disclose that Mr. Regan was recommending this approach; see the discussion in the Background section of this judgment from para. 27 et seq. and the findings, made in relation to issue (iii) above.

Finally, while this does not appear to be the understanding of Mr. O’Neill’s personal solicitor Mr. Lohan, it is notable that in this case, for whatever reason, the above correspondence of 27 June 2023 from the Purchaser’s Solicitors, the letter of 5 July 2023 from the Vendors’ Solicitors (both of which provide for the same stipulation that there will be no binding contract until, inter alia, signed contracts are “exchanged”), the withdrawal letter of 15 August 2023 and the letter of 16 August 2023 from the Vendors’ Solicitors were all omitted from the evidence submitted on behalf of Mr.

O’Neill at the trial.

(f) The vendor is not bound until they have returned the contract to the purchaser or their solicitor duly signed.

I am satisfied for the reasons set out above, that this conclusion follows in the circumstances of this case.

There was a clear stipulation during the pre-contract stage that there would be no contract until signed contracts had been “duly exchanged”. That stipulation was shared by both sides and never retracted.

(g) The purchaser is not bound until the vendor has signed the contract and returned it as it would be open to the purchaser to withdraw the offer prior to its acceptance by the vendor, provided such withdrawal is notified to the vendor before the vendor accepts the offer and notifies the purchaser of the acceptance. This will only apply if the purchaser's offer is not made or deemed to be irrevocable until accepted or rejected by the vendor, a practice that is unknown in this jurisdiction.

I am satisfied that the Purchaser was entitled as of 15 August 2023 to withdraw from the proposed contract as the Purchaser was not bound by the contract as a signed contract was not returned on behalf of the Vendors by this time. The facts show that, despite Mr. O’Neill’s incorrect evidence on Day 1, that the withdrawal was notified to the Vendors before the Vendors notified the Purchaser of acceptance of the offer in the manner stipulated, i.e. by the return of a signed contract of sale.

It is clear that the Purchaser did in fact withdraw from the proposed contract before it became binding.

VI. CONCLUSION

89. In summary therefore, for the reasons set out above, the four issues identified are answered as follows:-

(i) Was there a concluded oral agreement on or before 15 June 2023?

No, there was no concluded oral agreement.

(ii) Were there acts of part performance by the Purchaser?

No, there were no acts of part performance by the Purchaser.

(iii) Did the Purchaser try to renegotiate the proposed purchase of the Property while under contract?

No, the Purchaser did not try to renegotiate the purchase of the Property while under contract.

(iv) Was it the intention of the parties that one of the contracts as signed by the Purchaser would then be signed by the Vendors and returned to the Purchaser’s solicitors to thereby signify acceptance of the Purchaser’s offer?

Yes, it was the clear the intention of the parties that one of the contracts as signed by the Purchaser would then be signed by the Vendors and returned to the Purchaser’s solicitors to thereby signify acceptance of the Purchaser’s offer.

90. The position here is very similar to the position in Embourg. This analysis, exactly mirrors the analysis of Blayney J. in Embourg where he states:-

“The two parts of the contract duly completed by the plaintiffs were returned to the defendant's solicitors on the 25th January, 1995, with a request to return one part duly completed by their client in early course. The return of the two contracts duly completed was clearly an offer by the plaintiffs to purchase on the terms set out in the contracts. That offer could have been accepted by the defendant by communicating their acceptance of it to the plaintiffs' solicitors.

And the form of that communication would have been the sending to the plaintiffs' solicitors of one part of the contract duly executed on behalf of the defendant. But the offer was never in fact accepted. Neither part of the contract signed on behalf of the defendant was ever sent to the plaintiffs' solicitors, so the two parts of the contract signed by the plaintiffs continued to be no more than offers. In the absence of a communicated acceptance no contract ever came into being.”

91. Before applying these principles to the findings, it is important to recall that the law in relation to conveyancing does not impose any general requirement for an exchange of contracts as a technicality. As Embourg makes clear, the task is to identify firstly the offer, and then to identify whether acceptance of the offer has been communicated in the manner stipulated by the parties. Without communication of acceptance there is no binding contract. As Embourg makes clear, the fact in that case that a vendor had signed the contracts did not on its own constitute acceptance, as the signed contract was retained by the vendor’s solicitor and not exchanged or delivered to the purchaser. In other words the manner of communicating acceptance as stipulated by the parties had not been complied with.

92. Applying the relevant legal principles outlined above to the findings, I am satisfied therefore that when the Purchaser signed and returned the contracts of sale on 28 July 2023, accompanied by the payment of the deposit, it made an offer to purchase the Property on the terms set out in the contracts. On the objective evidence contained in the correspondence, including the consistent use by both sides of the formula “Subject to Contract / Contract Denied” and, in particular, the explicit stipulation that no agreement would be deemed to exist until contracts had been executed and exchanged, it was clearly within the contemplation of both parties that acceptance of that offer was to be communicated by the delivery to the Purchaser’s Solicitors of a part contract executed by the Vendors. Until that occurred, the fact that both Vendors had signed the contract did not bring about a concluded contract.

93. Consequently, when the Purchaser notified their withdrawal from the proposed contract to the Vendors on 15 August 2023 they did so before the contract had become binding since the Purchaser’s offer had not yet been accepted in the manner stipulated. The Vendors’ Solicitors reply the next day, consistent with this understanding, also stated “Contract Denied” and asked for the Purchaser’s bank details to facilitate the return of the deposit.

94. As of that date, the Vendors had not returned the contract signed by the Vendors and accordingly, as the return of the contract signed by the Vendors would have been the acceptance of the offer, there was no binding contract in place at the time of the withdrawal. Consequently, the Purchaser is entitled to the return of its deposit.

VII. FORM OF ORDERS

95. The Purchaser is entitled to an Order for the return of the deposit of €142,500. I will hear from the parties about the question of interest.

96. The claim of Mr. O’Neill for specific performance and the associated claims that the deposit is forfeited and / or for damages in lieu of specific performance therefore all fail and will be dismissed.

97. I will hear from the parties as to any further orders required and in relation to costs.