Dunnes Stores believes it should only release €15 million for the Point Village Development in Dublin after "high-class" tenants have been secured for other units in the centre, the Court of Appeal heard.
High class does not include “pop up” outlets such as an e-cigarette shop or any barber shop, Martin Hayden SC, for Dunnes, told the court.
Mr Hayden agreed with the president of the appeal court, Mr Justice Sean Ryan, that Dunnes had anticipated the Point Village would be “more like Dundrum Shopping Centre than Nutgrove [Rathfarnham]”.
The court was hearing an appeal against the High Court’s refusal to order disclosure of certain documents to Dunnes for its defence of an action by the receivers of Point Village Development Ltd (PVDL) aimed at compelling Dunnes to release €15 million as part of the supermarket chain’s deal to become the main, or anchor tenant, in the centre.
The money, the receivers say, is due under a 2010 settlement between Dunnes and PVDL whose chairman Harry Crosbie negotiated the agreement before Nama appointed receivers over the company in 2013 on foot of a €450 million debt.
Sought documents
Mr Hayden, for Dunnes, told the appeal court the documents sought would support their case in relation to high-end tenants.
Dunnes argues the correct reading of the original agreement to develop the Point Village, and of the 2010 settlement – drawn up to settle a dispute in relation to what must first happen before Dunnes would move in as anchor tenant – is that high-end tenants must be obtained.
That settlement required binding leases for seven of the other units in the Point to be taken out before Dunnes would have to fit out its unit.
Although some of those smaller units are now occupied, and those include an e-cigarette shop, a barber and a coffee shop, Dunnes claims some of them do not qualify as high-end tenants.
The discovery sought by Dunnes would show it was always anticipated the other tenants would be high-end, Mr Hayden said.
Michael Collins SC, for PVDL, said the Point Village as originally proposed was to include what was to be the highest building (102 metres) in Ireland and “U2 Experience” but these were later dropped.
Original agreement
Neither the original agreement nor the 2010 settlement used the words high-class tenants but Dunnes appeared to interpret them as such by references to “first-class” developments like Eyre Square in Galway and Dundrum Shopping Centre.
In any dispute, the 2010 agreement was to take precedence and all that said was there were to be seven binding leases in place before Dunnes would fit out its store, he said.
Dunnes had been due to open in the Point nearly 10 years ago but did not do so after the economy collapsed. This left a “chicken and egg” situation where smaller tenants did not want to go in without the anchor and the anchor saying it did not want to go in when the other units were vacant, Mr Collins said.
The Court of Appeal has reserved its decision.
