Hurley Property ICAV, for and on behalf of its sub-fund Cornerstone Property Fund, claims its tenants, ATC Pharmacy Ltd, pharmacist Philip McGorisk and Charlie O’Brien, have breached the lease by failing to keep the pharmacy open.
An application to admit the case to the fast-track Commercial Court on Monday was refused which means it will now go through the normal High Court list. ATC and Mr McGorisk had entered an appearance in the case and there was no appearance for Mr O’Brien.
It is claimed that last February 12, ATC closed the dispensary which operated within the premises without notice to the landlord. Despite letters querying that closure to ATC and to Mr McGorisk and Mr O’Brien, who provided sureties under the lease, there was no meaningful response, it is claimed.
In an affidavit, Marcus Ryan, MD of Alanis Capital, a firm of asset managers retained by Hurley, said the lease required that the premises be kept open for use as a “good quality retail dispensing pharmacy”.
In May, Mr Ryan said, he became aware ATC was beginning to carry visibly reduced stock levels and was dismantling various displays within the premises. It closed its doors over the May bank holiday weekend, failed to reopen and failed to respond to requests to comply with the “keep open” requirement, he said.
Hurley says the defendants’ liability runs to some €2.1m including current arrears and €1.4m in future arrears of rent, service charges and insurance based on what it says is the obligation to pay until the lease runs out in seven years.
It had brought proceedings last May, before the closure, seeking judgment against ATC for some €136,000, Mr Ryan said.
On Monday, John Kennedy SC, for Hurley, said as of last month things had escalated significantly between the parties when the closure, which affects other tenants within the centre, occurred.
Counsel said his side would also be seeking an injunction requiring the lease to be honoured and there would be additional losses by way of having a vacant unit in a busy shopping centre and the loss of the pharmacy service. However, depending on how matters progress an injunction may not be necessary, he said.
Patrick Leonard SC, for ATC and Mr McGorisk, said this was essentially a case about €136,000 and suitable for resolution in the normal High Court list.
The amount of the future and other arrears was “entirely speculative”, he said. Hurley had not shown the eagerness required for admission of a case to the commercial list and had taken “a very leisurely approach” to its application, he said.
He urged Mr Justice Denis McDonald to use the court’s discretion and not admit the case to the fast track Commercial Court.
The judge said bearing in mind the limited resources of the Commercial Court, he would refuse the application.
