O'C (C) v D (E)

 
FREE EXCERPT

2000 WJSC-CC 4995

THE CIRCUIT COURT

DUBLIN CIRCUIT

COUNTY OF THE CITY OF DUBLIN

Record No. 1995/5625
O'C (C) v. D (E)

BETWEEN:

C O'C
PLAINTIFF:
-and-
E D AND E D
DEFENDANTS.

Citations:

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989

WEBB V IRELAND 1988 IR 353

MCMAHON V IRELAND 1981 ILRM 419

KEANE EQUITY & THE LAW OF TRUSTS CH 28 PARA 28.12

SPENCER BOWER & TURNER LAW RELATING TO ESTOPPEL 3ED PARA 347

AMALGAMATED PROPERTY CO V TEXAS BANK 1982 1 QB 84

RAMSDEN V DYSON 1866 LR 1 HL 129

WILLMOTT V BARBER 1880 15 CH D 96

TAYLORS FASHIONS LTD V LIVERPOOL VICTORIA TRUSTEE CO LTD 1981 1 AER 897

CULLEN V CULLEN 1962 IR 268

Words & Phrases:

CEF

Subject Headings:

*

1

Judgment delivered by JUDGE CATHERINE McGUINNESS on 14th day of December, 1995

2

This matter was listed for hearing on 30 November 1995, along with proceedings pursuant to the Judicial Separation and Family Law Reform Act, 1989between the first and second named Defendants. The present proceedings which were commenced by Equity Civil Bill on 18th May, 1995 are a claim by the Plaintiff who is the mother of the first named Defendant for a declaration that she is entitled to a beneficial interest in the family home of the Defendants situate at ............., in the City of Dublin with a number of alternative reliefs.

3

It was clear when both matters came on for hearing on 30 November before me that there was not sufficient time available to the court on that day to hear both actions and it was agreed by all parties with the consent of the court that the present proceedings be heard and disposed of and that the judicial separation proceedings be adjourned for hearing at a later date.

4

Appearances were entered on behalf of both Defendants and on 17 October 1995 the first named Defendant's Defence was filed. The second named Defendant's Defence was not filed until 25 November, 1995. However, the first named Defendant did not in any real way contest her mother's claim and it was left to her husband, the second named Defendant, to defend the action.

5

The Plaintiff's claim for an interest in the property is based on the fact that she expended considerable monies to extend the premises and create a type of "granny flat" in which she has been living. In the judicial separation proceedings, the husband seeks inter alia an order for sale of the family home and it was clearly the fear of this taking place that motivated the Plaintiff's action.

6

The facts of the matter are scarcely in dispute. The Plaintiff, who is a widow, resided in her own family home at, in the City of Dublin. After her husband's death in 1974, members of her family resided with her but by 1988 all her adult children had left the home and she was residing there alone. She was nervous of living alone and this nervousness was exacerbated by an attempted burglary of the premises. Two family meetings of the Plaintiff's sons and daughters were held and as a result it was agreed that the Plaintiff would sell her own house and use the proceeds to build an extension or "granny flat" on to the Defendants” own family home at ………… The Plaintiff, and also her son T O'C and his wife, gave evidence that the second named defendant was fully agreeable to this plan; the Plaintiff indeed said that she spoke to her son-in-law about the plan and that he was perfectly agreeable to it. The second named defendant however in evidence said that he was definitely opposed to the idea and only gave in due to pressure from his wife.

7

The Plaintiff proceeded to sell her house in ………… for a sum of in or about £41,000. Her other daughter and her two sons waived any claim they might have to a share in these proceeds of sale. Out of the proceeds the Plaintiff expended £14,500 for the conversion and extension of the Defendants” family home. The work consisted of the conversion of the garage into a sitting room and the addition of a bedroom and bathroom on the first floor. The "granny flat" was not entirely self-contained; entrance was from inside the main house and the Plaintiff shared the use of the family kitchen. The effect therefore was to add a reception room and a bedroom with bathroom to the main house which could be used either as a "granny flat" or simply to enlarge the premises. The building work was carried out by Mr. E D, Senior, father of the second named Defendant who gave evidence at the hearing. There were also written records of the payments made from the Plaintiff's A.I.B. bank account and the amounts were not in dispute.

8

In addition to the monies paid as above, the Plaintiff lent to the Defendants a sum of £4,500 which was spent on renovation of the kitchen of the family home and other improvements such as carpets. This money was paid into the Defendants” joint Educational Building Society account on 9 November, 1988. The Plaintiff said in evidence that this was a joint loan of which the second named Defendant was well aware and indeed had jointly asked for the loan. This was not contradicted by the first named defendant but the second named Defendant stated in evidence that the matter was one purely between his wife and her mother and that he "steered away from dealing with Mrs. O'C". He denied all acknowledge of the joint E.B.S. account in which the money was paid. It appeared to be accepted that the money was not repaid to the Plaintiff and that the Plaintiff did not in her own words "push them for it".

9

It was accepted that at the time of the extension of the premises no recourse was had to legal advice, nor was any specific agreement made between solicitors. The Plaintiff was adamant in her belief that the expenditure of her money on the "granny flat" meant that it was "her" flat and that she "owned" it. She accepted that she could not sell the house as it was the family home of the Defendants, but said that the Defendants agreed that she would own part of the house. Again this was not challenged by the first named Defendant but the second named Defendant denied that it was ever agreed that she would "own" any part of the house and stated that all she acquired was a right of residence for life, which she was happy to accept.

10

The Plaintiff moved into the premises at the end of 1988 and has resided there to date. She contributes some £40 –£50 per week to the household and in addition looks after the children while her daughter is at work. This child care, in commercial terms, must be worth at least another £50 a week. She pays half the television licence and cable payment and has assisted with such expenses as school books, first Holy Communion and confirmation. She is by no means a dependant in the household.

11

After the "granny flat" had been built, the premises no longer had a garage. The second named Defendant gave evidence of having subsequently spent some £7,500 on the erection of a new garage and repairs to the drive and gateway, including the laying of tarmac.

12

Evidence was also given by a valuer. He valued the premises on 2 October 1995 at £67,000. Without the "granny flat"/extension, which added considerably to the floor area of the house, he felt that the premises would be worth between £54,000 and £57,000. He estimated the value of the original house before the extension in 1988 at £35,000. He felt that at present the additional living room, bedroom and bathroom would add between£10,000–£15,000 to the value of the house.

13

When asked about the additional value created by the garage, drive, etc., he estimated that these improvements would make the house easier and quicker to sell but would not greatly add to the value. The evidence of Mr. Redmond, the valuer, was to some extent challenged in cross-examination, but no expert evidence to contradict him was offered.

14

Counsel made legal submissions. Mr. Spierin, for the Plaintiff, argued that the Plaintiff firmly believed (and it was agreed) that she should have a beneficial interest in the premises as a result of her expenditure. He submitted that it was a legitimate expectation and a type of promissory or proprietary estoppel. He referred to the cases of Webb v. Ireland and the Attorney General [1988] IR 353 and McMahon v. Kerry County Council [1981] ILRM...

To continue reading

REQUEST YOUR TRIAL