Judge rules property fund to pay costs of dispute over warehouse access

A property fund has been ordered to pay legal costs incurred by a furniture company in seeking High Court orders to get access to a Dublin warehouse from which it alleged it had been unlawfully evicted.

Design Features Ltd (DFL), based at the EP Mooney Centre on the Long Mile Road, claimed it was denied access to the warehouse at Finches Business Park, Long Mile Road, after it was unable to pay rent for April due to the Covid-19 pandemic. It was also served with a forfeiture notice and its counsel Hugh O’Flaherty BL argued, under the warehouse lease and as a result of the Covid-19 emergency measures introduced by the government, the denial of access was not permissible.

Counsel had on April 23rd secured interim orders, ex parte, requiring his client to be given access to the warehouse. Those orders were against Goldstein Property ICAV and Goldstein Property Fund, with registered addresses at Harcourt Street, Dublin, and Quanta Capital Investments Ltd, Molesworth Street, Dublin.

When the case next returned to court on May 7th, the defendants disputed access was denied and gave undertakings not to act under the forfeiture notice.

Last week, Mr Justice Michael Twomey was told the matter had settled, the forfeiture notice had been withdrawn, the plaintiff has access and rent had been paid up to date. The judge was told the only outstanding dispute was about liability for costs and he heard lengthy arguments on that.

The defendants argued, among other things, there was no refusal of access and the case should never have been initiated. In a ruling on Wednesday, the judge ruled DFL was entitled to costs. He said access to the warehouse is via an electronic gate which opens via recognition of calls from certain mobile phone numbers. Goldstein controls the gate and was alleged to have rejected mobile numbers used by the plaintiff, with the result it could not get access.

The defendants denied any denial by them of access and said the access difficulties were due to a “technical issue” with the gate.

Correspondence

Having considered correspondence between the sides before DFL went to court, the judge was satisfied there was no reference by the defence to access difficulties being due to a technical issue. The court cannot resolve the factual dispute raised in the case but it is relevant the only substantive response by Goldstein to the plaintiff’s claims about access was to issue a forfeiture notice, he said. The technical issue was resolved by a phone call on the morning of April 24th and that showed it could have been resolved earlier without court proceedings, he said. DFL had no option but to go to court because of the absence of any substantive response to its concerns about access, he said Even if this was an innocent technical issue, it was clear from the pre-court correspondence Goldstein was “in no hurry to resolve it”, he added.

DFL, he concluded, was entitled to seek the ex parte orders and therefore was entitled to its costs. The costs order is limited to Goldstein ICAV only and the proceedings were struck out with liberty to apply concerning the costs order.