Minister for Communications v Figary Watersports: one who seeks equity must do equity

lady-justiceUnder s 52 of Deasy’s Act (Landlord and Tenant Law Amendment Act, Ireland 1860) a landlord can take a special action for ejectment where one full year’s rent is in arrears. However, s 60 provides that proceedings will be stayed if the tenant pays the rent due plus the landlord’s costs. Under s 71, the court may “give such relief therein as a court of equity might have done”. In this case, the Court held that, in the interest of fairness and justice, for Figary to avail of the provision of s 60 he must pay all rent in arrears–including arrears for which the Minister was statute barred from claiming.


In 1993 Figary (a company) entered a 99 year lease with the Minister for the Marine for eight acres of foreshore in Fahan, County Donegal for the purpose of constructing a marina. Figary was to submit plans for the marina which were subject to the Minister’s approval. No work was carried out until 1998, though, and no rent was paid to the Minister. In July 1998, the Minister issued a forfeiture notice under s 14 of the Conveyancing Act 1881. However, in 2000, the Minister’s Department wrote to Figary confirming that the lease was active, subject to a number of conditions concerning the approval of plans, the provision of a bond and the appointment of consultant engineers. Thereafter, the marina was constructed, and it was opened in 2002. Despite that, though, during 2001 and 2002 there was acrimony between the parties, mainly in relation to the treatment of dredge sand and Figary’s continued failure to pay rent. And in 2005 it was discovered that the marina encroached onto foreshore not subject to the lease. In October 2005 the Minister issued High Court proceedings seeking to enforce the 1998 forfeiture notice and a judgment for rent arrears. Alternatively, the Minister sought an order for ejectment under s 52 of Deasy’s Act. Figary cross claimed for loss caused by the Minister’s unreasonable refusal of consent to remove dredge sand, unreasonable conditions concerning the provision of a bond and failure to forward Figary’s application for EU funding for the project.

In the High Court (here), McKechnie J held that the Minister could not rely on the forfeiture notice as it was abandoned by consent; that the Minister was entitled to recover the rent due since 1999 only, as recovery of rent due prior to that was barred under the Statute of Limitations Act 1957; and that he would exercise his discretion to refuse forfeiture subject to Figary paying the arrears due. However, he also held for Figary that the Minister had unreasonably withheld consent to the removal of dredge sand and did place unreasonable conditions on the provision of a bond (although Figary was not entitled to damages in either regard). In addition, the Minister was guilty of a breach of statutory duty regarding Figary’s application for EU funding for which he determined that it had a 50% chance of being successful.

The Minister appealed the High Court’s adverse findings to the Supreme Court.

Supreme Court

A three judge panel heard the appeal: Clarke J, Laffoy J and Charleton J. Laffoy J wrote the judgment for the Court (here). She held that, as there was no award for damages from the adverse findings regarding the dredge sand and the conditions put on the provision of the bond, as Figary was not cross appealing, and as it had no effect on the overall outcome of the case it would be a futile exercise for the Court to consider those issues [62, 68]. She determined that the forfeiture notice ceased to exist from 2000 when the Minister confirmed that the lease was active [23-37] and that an a procedure under s 52 of Deasy’s Act is a separate procedure distinct from forfeiture and subject to equitable principles. Therefore, in the interest of fairness and justice, for Figary to avail of a s 60 stay on those proceedings it must pay all rent due–even the arrears which the Minister was statute barred from seeking [38-50]. The Court upheld the High Court’s finding concerning the Minister’s breach of statutory duty to forward Figary’s application for EU funding to the steering committee, but varied the award for damages.

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