Penalty clause in settlement agreement was unenforceable

Plaintiff's application to re-enter proceedings - to enforce a settlement agreement - issue before court is whether plaintiff can recover from the defendant the payment specified in clause 9 of the settlement agreement - plaintiff insolvent company and registered owner of property - voluntary liquidation - defendant granted lease of part of property by previous owners - for 3 years at €35,000 per annum - issue arises as later transpired that there were also a number of other parties in occupation of property at that time - although it is unclear as to whether they were permitted to occupy the property by the defendant - none of other entities disclosed to liquidator or High Court - consideration of events subsequent to the settlement agreement - court considers principles of interpretation in Stapleyside Company v Carraig Donn Retail Limited [2015] IESC 60 - court finds settlement agreement imposed no legal requirement on the defendant to compel the occupants to leave - court not persuaded that matter should be remitted to plenary hearing - court considers whether clause 9 is a penalty clause - Pat O’Donnell & Co Limited v Truck & Machinery Sales Ltd - further Sheehan v Breccia - court finds theres no requirement for the defendant to pay a contribution to the plaintiff's costs - court concludes clause 9 is a penalty clause of €50,000 - and so normally would be unenforceable - court considers whether clause could be enforceable against the defendant - court finds that plain reading of settlement agreement required defendant to vacate the property by December - court concludes that failure of the defendant to secure the removal of the other identified Occupiers does not constitute a breach of contract by the defendant - court finds had there been a contract, the payment provisions in clause 9 of the Settlement Agreement would constitute a penalty clause - and would be unenforceable - clause is not worded in terms that are clear enough to permit the payment specified to be recovered as an agreed payment on the basis of a stand-alone covenant by the defendant unrelated to any breach on its part - matter listed for final orders on next occasion.