The High Court has refused to strike out a case against a company over its installation of allegedly ineffective eco-heating and ventilation systems in 12 Co Monaghan homes.
In a judgment, Mr Justice Cian Ferriter found that while the delay to the decade-old proceedings was inordinate, and at some periods inexcusable, he said the balance of justice "just about" favours not dismissing the case. He reasoned that the proceedings appear "virtually ready for trial" but emphasised that any further delay from the plaintiffs "should not be tolerated".
Michael and Margaret Treanor, who commenced development of the 12 houses in Mullan Village in 2006, claim in their action that the systems installed by NuTech Renewables Limited "failed entirely" and needed to be replaced by conventional models at a cost of just under €650,000, the judge noted.
Mr Justice Ferriter said the Treanors' action claims damages against NuTech for alleged negligent misrepresentation and alleged breach of contract and duty arising out of an agreement said to have been entered in the summer of 2006. NuTech directors Mark Forkin and William Quigley are being sued for alleged representations made at the time of the agreement and because there was allegedly a collateral agreement between them and the Treanors, said the judge.
The claims are denied.
Mr Justice Ferriter noted that there were allegedly complaints that the heating systems were ineffective from the purchasers of two homes sold in December 2007. The defendants continued working on the remaining houses in the development until April 2008, he said.
Report
The defendants were made aware of the alleged defects and produced their own report on the problem in December 2008, subsequently undertaking extensive testing and remedial works and producing a further report, he said. The Treanors dispensed with the defendants’ services in July 2009 and then replaced the specialist systems with conventional models in all 12 homes, the judge said.
The defendants brought a motion seeking to strike out the Treanors’ case on grounds that there has been an inordinate and inexcusable delay to the proceedings on the part of the plaintiffs. With the case still not disposed of, the defendants contended that it could have a potentially negative effect on new intended projects.
Mr Justice Ferriter accepted that there is some degree of prejudice against the defendants by the 30 months of inexcusable delay, but he said he was not persuaded that it is material prejudice.
While it was stressed through submissions that the case against Mr Forkin and Mr Quigley is “unstateable”, the judge said it was not the court’s role to express any view on the strength or otherwise of the parties’ case on a dismissal application.
