Charalambous v Nagle

JurisdictionIreland
CourtSupreme Court
JudgeDenham J.,Macken, J.
Judgment Date31 March 2011
Neutral Citation[2011] IESC 11
Date31 March 2011

[2011] IESC 11

THE SUPREME COURT

Denham J.

Hardiman J.

Macken J.

[Appeal No: 324/2010]
Charalambous v Nagle
Between/
Michael Charalambous
Plaintiff/Appellant

and

Margaret Nagle
Defendant/Respondent

BELVILLE HOLDINGS v REVENUE CMRS 1994 1 ILRM 29

STATUTE OF FRAUDS (IRL) 1695 S2

MCG (G) v W (D) 2000 4 IR 1 2000 2 ILRM 451

COURTS

Appeal

Consent order - Application to set aside - Circuit Court - Principles to be applied - Whether final order of Circuit Court open to relitigation - Whether final order of Circuit Court valid - Whether solicitor for appellant had authority to agree consent order - Whether trial judge erred in law in failing to apply appropriate test to relitigate consent order - Belville Holdings v Revenue Commissioners [1991] 1 ILRM 29 applied - Appeal dismissed (324/2010 - SC - 31/3/2011) [2011] IESC 11

Charalambous v Nagle

Facts The plaintiff/appellant had been involved in previous proceedings in the Circuit Court with the defendant Margaret Nagle. Originally proceedings had been instituted by the defendant relating to the lease of a licensed premises of which she was the owner. The defendant had claimed that substantial arrears of rent were owed, had brought an ejectment civil bill and served a notice of forfeiture. When the matter came on for hearing in the Circuit Court a consent order was made that the plaintiff would deliver up the premises if the outstanding rents and other liabilities were not paid with four months. The plaintiff sought to appeal the consent order in the High Court and Edwards J in the High Court (26/05/08) refused the appeal on the grounds that it was an order made on consent and that no appeal could lie. There had been District Court proceedings also which had resulted in the transfer of the liquor licence in respect of the premises to the defendant. The plaintiff appealed the order to the Circuit Court and Judge White in the Circuit Court (30/10/08) dismissed the appeal. The plaintiff brought High Court proceedings seeking to set aside the terms of the Circuit Court order. The defendant brought a motion seeking to have certain claims of the plaintiff struck out. In addition an order was sought that outstanding monies should be discharged as a condition of the further prosecution of the plaintiff's claims. The High Court ordered that the claims of the plaintiff contained in his statement of claim be struck out. Thereafter the plaintiff appealed to the Supreme Court. The plaintiff claimed that he had not authorised his solicitor to settle in the Circuit Court and that instructions were given not to settle.

Held by Denham J in delivering judgment. On the date of the consent order there was evidence that the plaintiff/appellant was legally represented, consented to the order, and envisaged that he could pay the sums ordered. There was a dispute between solicitors who at different times had represented the plaintiff that might required to be addressed elsewhere. There were no grounds raised upon which to set aside the consent order on a basis recognised by law. The orders in question were final orders could not be relitigated except in circumstances such as indicated in Belville Holdings v. Revenue Commissioners [1994] 1 I.L.R.M. 29. It was clear that there had been negotiations at the Circuit Court proceedings. When ultimately the matter came back to Court, the trial judge addressed the situation carefully, the plaintiff was in court with his legal representative, was informed of the terms of the settlement, and the consent order was made. The High Court had held that the plaintiff's solicitor had implied authority to conclude the negotiations and that his instructions were not withdrawn. The High Court judge had acted within jurisdiction and there was no error in law. The motion of the defendant to strike out portions of the statement of claim as being vexatious was well founded. The case, based on a consent order, together with others brought by the plaintiff/appellant, had been in the courts for years. The respondent had been negatively affected by these years of litigation by the appellant. Parties should address the issue as to whether an Isaac Wunder order was appropriate in all the circumstances. Macken J delivered a separate judgment and held that, the High Court judge had ample material before him upon which to conclude the settlement was a consent settlement, and that the (original) order of the Circuit Court was a valid consent order. The previous orders of the High Court were orders properly made on the basis of the materials before them, and could not be set aside.

Reporter: R.F.

1

Judgment delivered on the 31st day of March, 2011 by Denham J.

2

JUDGEMENT DELIVERED BY DENHAM, J. (HARDIMAN, J. CONCURRING) & MACKEN, J.

3

1. This appeal is brought by Michael Charalambous, the plaintiff/appellant, referred to as "the appellant", in proceedings which are part of a series of litigation brought by him in relation to a consent order of the Circuit Court made on the 5 th February, 2008.

4

2. These, and other proceedings, have been brought by the appellant against Margaret Nagle, the defendant/respondent, referred to as "the respondent", who, with her husband originally, leased a premises, on which stands The Avoca Inn, to the appellant.

Order of the High Court
5

3. The appellant appeals the order of the High Court (Murphy J.) given ex tempore on the 28 th July, 2010, and perfected on the 29 th July, 2010. The High Court ordered that the following claims of the appellant contained in his statement of claim be struck out:-

6

(a) the claim for an order setting aside the Order of the Circuit Court (Judge O'Sullivan) of the 5 th day of February 2008 made on consent

7

(b) the claim for an order setting aside the Orders of the High Court of the 7 th day of April 2008 and of the 25 th day of May 2008

8

(c) the claim for an order setting aside what is claimed as "the purported settlement of the above proceedings"

9

(d) the claim for an order remitting "the said proceedings" to the Circuit Court for hearing

10

(e) the claim for an order granting [the appellant] possession of the Avoca Inn, Avoca, Co. Wicklow with attachments and appurtenances thereto

11

(f) the claim for specific performance of the Lease dated the 16 th of April 2002

12

(g) the claim for an order staying enforcement of the aforesaid orders of the Circuit Court and High Court.

13

A claim for an Isaac Wunder order was refused. It was ordered that the appellant pay to the respondent the costs of the motion (limited to paragraph 1), when taxed and ascertained.

Grounds of Appeal
14

4. The appellant filed a notice of appeal stating that he would rely on the following grounds of appeal:-

15

That the Learned High Court Judge misdirected himself in law and upon the evidence and upon the weight and balance of the evidence in:

16

(i) Striking out the claims of the appellant contained in his Statement of Claim, and set out in the order of the learned High Court Judge dated the 28 th day of July 2010.

17

(ii) Determining that the matter was Res Judicata, when never have the true issues between the parties been opened and argued before the Court.

18

(iii) Refusing the appellant an opportunity to prepare and file a replying affidavit to the affidavit of Oisin Murphy who was not a party to the proceedings.

19

(iv) Relying mainly on the submissions made on behalf of and the evidence contained in the affidavit of Oisin Murphy who was not a party to the proceedings.

20

(v) Refusing to allow the appellant to cross-examine Mr. Murphy on the sworn evidence contained in his affidavit filed on the 23 rd day of July 2010.

21

(vi) In relying on an unsigned note of terms of consent purportedly agreed between the parties.

(vii) On failing to hear oral evidence to determine:-
(a) If terms were agreed between the parties,
22

a b. That the appellant was not agreeable to terms, and informed his solicitor (Mr. Murphy) of this and also informed the solicitor for the defendant (Mr. Joyce).

23

b c. On what sums if any were owing once the overpayment was allowed as if none were owing the court had no jurisdiction to act to accept the consent terms

24

c d. What advice Oisin Murphy gave to the appellant and what instructions were given by the appellant to Mr. Murphy.

25

(viii) Failing to address and consider the conflicting evidence on behalf of the respondent, therefore failing to consider the bone fides of the respondent.

26

(ix) Failing to adequately take account of what was at stake for the appellant, viz his reputation and livelihood.

27

(x) Such further and other grounds as may be advanced at the hearing of the appeal herein.

History
28

2 5.1 These proceedings are rooted in an ejectment civil bill, brought by the respondent, dated the 2 nd October, 2006. That civil bill set out that by indenture of lease dated 16 th April, 2002, the respondent and her late husband Michael Nagle, as joint tenants, demised the public house known as The Avoca Inn, in Avoca, Co. Wicklow, and the ordinary seven day publican's licence attached thereto, to the appellant for 21 years from the 15 th November, 2001, to the 16 th November, 2022, subject to rents and covenants and conditions. Upon the death of her husband on the 5 th October, 2005, the respondent, by right of survivorship, became entitled to the demised premises subject to and with the benefit of the said lease.

29

3 5.2 By the lease the appellant covenanted to pay during the first period of 156 weeks of the term weekly rent of €761.84 and thereafter a weekly rent not less than that sum as provided in the lease. It was provided that rent should be paid to the landlord every Thursday. It was also provided that if the rent were...

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