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This is an appeal, with leave of the Deputy Bailiff, against a decision of the Acting Magistrate, dated 30th June, 2010, sitting in the Petty Debts Court. On that occasion he gave judgment in favour of the respondent for the return of a deposit in the sum of £3,582.63 paid by the respondent to the appellant in respect of a contract for the manufacture and supply by the appellant of certain windows. The Magistrate held that the contract in question was illegal with the consequence that it could not be enforced and the respondent was entitled to repayment of its deposit.
The appeal turns on certain findings of fact which the Magistrate made. We shall for convenience refer to the appellant as the defendant and the respondent as the plaintiff, as these were their respective roles before the Petty Debts Court.
Much of the factual background is not in dispute. We propose to summarise this and then turn to the key issue upon which the parties differed. The Magistrate heard three witnesses. Mr John Farley is the principal of the plaintiff and is a developer; Mr Paul Horgan is the principal of the defendant which is a joinery company; and Mr Sean Osmand is a planning and design consultant who was retained by Mr Farley on behalf of the plaintiff to design the windows which were the subject of the action.
Mr Osmand had at some stage suggested Mr Hogan's company to Mr Farley as a suitable firm to manufacture and supply the new windows. On 1st April, 2009, Mr Farley met Mr Horgan at the property. There is a dispute between the parties as to exactly what was agreed at that meeting and we shall return to that later in this judgment. What is not disputed however is that, at the meeting, it was agreed that the defendant would quote for the supply of 10 windows for installation in the property.
On the 9th May Mr Horgan, on behalf of the defendant, submitted a revised quotation (No.95 - A) which now included the dormer windows but was otherwise identical to the first quotation in respect of the original ten windows. The terms and conditions attached to the quotation required a 30% deposit on placing of the order and also contained the following provision:-
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