Cullen v Cullen

CourtHigh Court
Judgment Date10 July 1962
Docket Number(1960/74 P.)
Date10 July 1962
Cullen v. Cullen
(1960/74 P.)

Injunction - Family business and home - Family dispute - Father's action for injunction to restrain trespass by sons - Jurisdiction - Discretion - Father's purported informal transfer of lands to mother - Residence built on the lands by son at mother's invitation and with father's permission - Father's attempt to exclude son from lands and house - Privity between father and son relating to building of house - Evidence - Father estopped by conduct from denying son's title to site of house.

The plaintiff had built up a successful business at Enniscorthy and Adamstown, Co. Wexford. He lived with his family in his premises at Adamstown where he carried on the business of a licensed grocer and merchant. There was also a small farm attached to the business. The eldest son, S., left school in 1945 and joined his father in the business, and the second son, M., did likewise in 1946. A younger son, P., worked in the business from 1954. From about 1945 onwards a series of family quarrels commenced between the father on one side and the mother and sons on the other. In 1952 the plaintiff first accused his wife and children of robbing him. In 1954 S. left the house and set up in business on his own. In the same year M., who had previously left the house after a quarrel, returned at the request of his father to take over the complete running of the business, save that the plaintiff reserved the right to sign cheques drawn in connection therewith. About 1956 the plaintiff began making difficulties about signing cheques and ultimately it was agreed that M.would hand over the management to his father in January, 1958. M. then received £3,500 from his father and bought himself a farm; he continued to reside in the family home. The plaintiff became erratic in some of his business affairs and in 1959 his wife caused him to be examined by doctors, including a mental specialist, who diagnosed a paranoid illness. An attempt was made to remove the plaintiff to a mental hospital but he escaped to Dublin. When in Dublin the plaintiff sent word to his wife by messenger that he was transferring the property at Adamstown to her, and that she should carry on the business in her own name. In return for this he required a signed statement from his wife and sons that he was sane and the withdrawal of any order of arrest which might have been made in connection with the attempt to commit him to a mental hospital.

Early in 1959 the plaintiff's wife won a portable house in a competition. She gave this house to her son, M. He offered it to his father who refused it. M.began to prepare a site for it on his own lands. When the plaintiff went to Dublin his wife thought it would be suitable to have M.'s house erected on the lands at Adamstown, and she sought her husband's permission to do so. He replied by messenger that he was making the place over to her and she could erect the house where she liked. As a result M. erected the house on the lands at Adamstown rather than on his own lands.

On the 14th September, 1959, the plaintiff sent letters to M. and P. requiring them to leave the house and give up any connection with the management of the farm or business.

In an action by the plaintiff (commenced in June, 1960) against his sons,M. and P., claiming 1, an injunction to restrain the defendants from interfering in the business and from trespassing on the property at Adamstown; 2, accounts; 3, damages for trespass; and in a counterclaim by M. that he was entitled to the house he had built and the site thereof at Adamstown it was

Held 1, An injunction should not be granted because

(i) It would make an reconciliation impossible and would prevent the plaintiff's family from visiting him;

(ii) It would be impossible for the defendants to visit their mother in her home;

(iii) The defendants had never attempted to exclude the plaintiff from control of his business;

(iv) The defendants had stated in Court that they did not intend to prevent the plaintiff's return or to interfere in his business;

(v) Injunctions should not govern the relations between fathers and sons;

(vi) There was a risk that plaintiff's hostility to his wife might revive on his return and somebody should be in the house to protect her;

(vii) The plaintiff had a separate business at Enniscorthy and received the grazing rents from Adamstown.

2, The plaintiff was entitled to damages for trespass, measured at £50 each, against the defendants.

3, The claim for an account should be dismissed.

4, M. could not require the plaintiff to execute a conveyance of the site of his house, but the latter was estopped by his conduct from asserting his title to it.

Semble: After twelve years M. could bring a successful application under s. 52 of the Registration of Title Act, 1891, to be registered as owner.

Witness Action.

The plaintiff, John Cullen, brought an action in the High Court, against the defendants, his sons, Patrick Cullen and Martin J. Cullen, claiming 1, an injunction to restrain them from interfering in the family business at Adamstown, Co. Wexford, and from trespassing on the property at Adamstown; 2, accounts; 3, damages for trespass. In a counter-claim, Martin J. Cullen claimed that he was entitled to a house which he had built at Adamstown and to the site upon which he had built it. The facts, which have been summarised in the headnote, are set out fully in the judgment of Kenny J., post.

Kenny J. :—

The plaintiff, Mr. John Cullen, began his career in business as a shop assistant in Enniscorthy. He prospered and established his own shopkeeping business in which he sold boots,

shoes and groceries: he also bought a farm near Enniscorthy. He was married in November, 1928, when he was forty-seven and his wife was twenty-three. There were five children of the marriage, Seán, who was born on the 2nd September, 1929, Martin, Liam, Patrick and Joseph. Joseph has never been in good health and has been away from home for a number of years. After the marriage, Mrs. Cullen helped her husband in the business at Enniscorthy by keeping the books and helping in the shop.

The plaintiff's business continued to prosper and in April, 1944, he purchased for £6,890 premises at Adamstown to which an intoxicating liquor licence was attached. The premises purchased consisted of a bar, a grocery shop, a store, living accommodation and about 60 acres of land. The family moved from Enniscorthy to Adamstown and have lived there since 1944. The plaintiff retained his business in Enniscorthy which was conducted by a manageress.

In 1945, the eldest son, Seán, left school and went to work in the business: in 1946, the second son, Martin, left school and he too went to work in the business. In 1946, Seán won a prize of £6,250 in a sweepstake but did not receive the money until he was 21 years of age.

From the time that the family moved to Adamstown there were quarrels between them: although it was not a happy household there were not any serious disputes until 1949. I am satisfied that relations between the plaintiff on the one side and Mrs. Cullen and the children on the other got progressively worse from 1945, that there had been numbers of quarrels before 1949 and that from the time that Sean and Martin began to work in the business their father was suspicious of them. In 1949, when Seán was nearly twenty, he came home from a dance at three o'clock in the morning and was told by the plaintiff to go away and not to come back. He remained away for two or three weeks and returned when his mother told him that the plaintiff wanted him to come back.

In 1951 the plaintiff went to Dublin for a serious operation and remained there for about six months. He left his wife to run the business (which had an annual turnover of about £10,000) but left £20 in cash only for the financing of the business. The plaintiff was the only person with authority to draw cheques on the bank account used in connection with the business, and when Mrs. Cullen wanted to pay some debts due to suppliers she sent the cheques to the plaintiff in Dublin for signature: the plaintiff sent her a reply that the accounts were to be paid out of the cash takings of the business or by money order. This happened at a time when the customers of the business were likely to be seeking credit. Mrs. Cullen got a loan of £700 from a friend and opened a bank account in her own name and, when her husband returned in the spring of 1952, this loan was repaid.

When the plaintiff returned, the disputes and quarrels began again. In May, 1952, there was a quarrel between the plaintiff and Sean as a result of which Sean left and went to Dublin where he remained for three weeks. He returned at his mother's request. About this time the plaintiff began to accuse his wife and children of robbing him and made this accusation to a number of customers who were in the shop. Martin Cullen asked a Mr. Lawton who was the accountant of the business to see his father and an interview took place between them in June, 1952. Martin was worried about these charges as his father was in charge of the cash in the business and he thought that his father would try to show a loss in the business so that the view that he was being robbed would be confirmed. When the accounts were completed at the end of 1952, they showed a substantial drop in profits. When the accounts had been received by the plaintiff a further discussion between the plaintiff and Mr. Lawton took place and the plaintiff subsequently told Martin that there would have to be a big change in the running of the business as so much money had gone astray. Unfortunately none of the accounts of the business for any period prior to June, 1959, were given in evidence, and although I indicated at the end of the evidence that I thought that they would be of assistance counsel for the defendants...

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