AN ACTION by nine people for the return of deposits allegedly paid over for apartments in Las Vegas has commenced before the High Court.
The case is against property agent David Tracey, trading as DTS International Property Services, Pembroke Road, Dublin. The nine are seeking the return of deposits totalling €268,710 which they allegedly paid under residential purchase agreements signed on dates between September and December 2006 for apartments at the Borgata Condominium complex, South Jones Boulevard, Las Vegas, USA.
The nine plaintiffs are Joanne Caldwell and Ryan O’Hara, Ridgewood Avenue, Swords; Fiona and Gary Malone, Woodlawn Park, Santry; Martin and Miriam O’Reilly, Glen Ellan Close, Swords; Kevin Dawe, Callystown Road, Clogherhead, Co Louth; Mark Foran, Ballydonnell, Baltray, Co Louth and John Foran, Howth Road, Clontarf, Dublin.
Opening the case yesterday, Mark Sanfey, for the plaintiffs, said it was agreed, as part of the arrangement to buy the apartments, that DTS would be fully responsible for organising the necessary finance for the completion of the residential purchase agreements. His clients would have no role except to provide the necessary information to allow finance to be arranged.
Counsel said it was also agreed 75 to 80 per cent of the purchase price for the properties was to be financed by a mortgage lender and a deposit was to be paid. It had been represented to his clients that they were entitled to have their deposits returned to them if a mortgage lender was not put in place within 30 days, counsel said.
While up to four financiers requested information after the deposits, no lender came on board and his clients asked for their deposits to be returned. Despite repeated demands on dates between February and August 2007, the money was not returned and they had been without their money for a considerable time.
The plaintiffs were prepared to pay certain legal fees and stamp/purchase tax incurred prior to requesting their money back, Mr Sanfey said. However, there was nothing in the contracts indicating they were liable for any penalties as a result of the purchases not going ahead.
The defendants deny the claims and have also counter-claimed against the plaintiffs. They deny it was agreed DTS was fully responsible for organising the necessary finance for the completion of the residential purchase agreements or that the plaintiffs would have no role other than providing information needed to allow finance be arranged. It is contended the plaintiffs were obliged to get the finance.
The defence also denies all deposits were fully refundable and pleads the plaintiffs failed to use reasonable diligence to secure the necessary finance to complete the purchases.
The defence further claims, as a result of the plaintiffs’ alleged failure to give notice within 30 days they had not obtained the required finance, it was entitled to cancel the agreements and take the deposits as damages. The deposits of Mr Dawe and John and Mark Foran had been taken.
While arguing it is not obliged to do so, DTS says it was willing to return the deposits to the other plaintiffs after the deduction of some fees, including penalty charges, American legal fees, travelling expenses and appraisal fees.
The case before Ms Justice Mary Laffoy continues and is expected to last for four days.