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Owners of Cork city premises awarded €45k after tenant converted it into pub without their consent

Joe Kearny claimed the owners of the property had consented to the works he had undertaken.

Image: Shutterstock/IsabellaO

THE OWNERS OF a commercial premises in Cork city centre have been awarded over €45,000 in damages for the cost of remedial works necessitated after a former tenant converted the building into a bar without their permission.

Businessmen, Richard Walsh, Morgan O’Brien, Declan Field and David Brady had sued Joe Kearney for the cost of repair works to the building on MacCurtain Street in Cork which the tenant had operated as the Flux Bar.

The plaintiffs claimed the condition of the property, which required extensive repair works, was caused by alterations made by Kearney without their consent.

Kearny claimed the owners of the property had consented to the works he had undertaken and also denied that he had caused the problems claimed by plaintiffs.

He originally counterclaimed for almost €150,000 for goods which he claimed belonged to him which were left in the building after he had abandoned it as well as for €201,000 for the costs of refurbishing the premises.

The High Court heard the plaintiffs leased the ground floor of the premises, which had been trading as the Agora Bar, to Kearney in June 2006 who opened an off-licence called the Naked Grape.

The term of the lease was 25 years with initial annual rent at €40,000, increasing by €5,000 per annum for each of the first five years.

The High Court heard the owners of the property became aware in early 2007 that Kearney had undertaken works which effectively converted the premises back into a bar and included the removal of fire exit corridors and a relocation of the toilet area.

In 2008, a firm of architects whose offices were on the first floor of the building complained that the floor had subsided.

The High Court heard that the owners had effected a peaceable re-entry of the pub in December 2009 after it had been abandoned with rent, rates and water charges unpaid and the electricity cut off.

They claimed Kearney had fallen into arrears of over €27,100 on the rent by October 2009.

In evidence to the High Court, Kearney conceded that the works carried out in 2007 were not designed or supervised by any competent professional or expert.

He said he had contracted the works to David Hanlon who, with a partner, ultimately took over the trade of the Flux Bar.

Kearney gave evidence that he met Walsh in the Metropole Hotel in November 2006 in which he explained trade in the Naked Grape was unsatisfactory and he wished to convert the ground floor back into a bar.

He said Walsh indicated he was open to such alterations but would first need to see the plans and consult with his partners.

Kearney claims he got Walsh’s consent to convert the premises to a bar in a phone call on Christmas Eve in 2006 – a claim disputed by Walsh.

Justice Quinn said he concluded on the balance of all the evidence that the sagging of the first floor could only have been caused by the works undertaken by Kearney in 2007 which required the remedial work carried out by the plaintiffs.

The judge said no consent was given even if Walsh had indicated that his plans would be considered.

He said it appeared Kearney regarded himself over a period of time as no longer bound by clear contractual obligations and believed he could “transfer” responsibility to Hanlon whom he claimed was somehow responsible for the rent arrears.

Dismissing Kearney’s counterclaim for damages, the judge said the defendant could not assert that the plaintiffs had acted unlawfully in relation to the contents of the bar when he had abandoned possession of the premises without either a surrender or any orderly communication with the owners.

Although the plaintiffs had originally sued for €83,879, the sum was revised downwards to €63,928.

Justice Quinn said the majority of the costs should be allowed in full but accepted Kearney’s argument that the claim for loss of rental income could have been reduced by putting the property back on the market at an earlier stage.

He awarded the plaintiffs a total of €45,614.

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Seán McCárthaigh

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