Doherty v Quigley

• Jurisdiction: Ireland
• Judge: Mr Justice Peart
• Judgment Date: 21 December 2015
• Neutral Citation: [2015] IECA 297
• Docket Number: APPEAL NO. 2015 NO. 89
• Court: Court of Appeal (Ireland)
• Date: 21 December 2015

Between:

Dana Doherty (A Person of Unsound Mind Not so Found) suing by her Next Friend Fintan Gallagher

Plaintiff/Respondent

and

Michael Quigley and Alice Quigley

Defendants/Appellants

[2015] IECA 297

APPEAL NO. 2015 NO. 89

THE COURT OF APPEAL

Property Transfer – Creditors – Statutory Interpretation - s. 10 of the Conveyancing Act (Ireland) 1634 – Tortious Acts - Damages

Facts: The court considered the interpretation of s. 10 of the Conveyancing Act (Ireland) 1634 in this appeal. The first defendant made two transfers of property to his wife the second defendant. The plaintiff sought to have both set aside on the grounds that their purpose was to ensure that the lands would not be available to satisfy any judgement that she might obtain against the first defendant. The High Court determined that the two transfers were fraudulent transactions and were therefore void within the meaning of s. 10 of the 1634 Act. The appellants grounds for appeal were that a person seeking to set aside a transfer for being void under s. 10 of the Act must already be a creditor of the disponer, and not just someone who may become his creditor in the future.

Held by Peart J: The court considered whether the trial judge was correct to conclude that the plaintiff was a creditor within the meaning of s. 10 of the 1634 Act at the time the property transfers were made. The court determined that s. 10 of the 1634 Act applied to existing creditors and to people who may become creditors in the future because of reasons existing at the date of transfer. The court agreed that the trial judge was correct to infer that the first defendant’s intention in transferring the property was to put it beyond the recourse of the plaintiff should she be successful in her damages claim. For these reasons the appeal was dismissed.

JUDGMENT of Mr Justice Peart delivered on the 21st day of December 2015:

1 It is unusual these days for the determination of an appeal to turn on the interpretation of a statutory provision enacted during the reign of King Charles I of England, almost four hundred years ago. But s. 10 of the Conveyancing Act (Ireland) 1634 (10 Chas. 1 sess. 2 c.3) was not repealed until the commencement of the Land and Conveyancing Law Reform Act, 2009 on the 1st December 2009, and was therefore extant on the dates of the two transfers of property made in 1998 and 2000 by the first defendant in favour of his wife the second defendant, and which the plaintiff seeks to have set aside. The language of the section is of its time, and therefore arcane and tortuous to modern eyes. However, just as Theseus unravelled a string to ensure his safe escape from the labyrinth having slain the Minataur, I have for the reader's assistance underlined the essential words of this ancient section as a guide to its conclusion. It provides:

‘10. And furthermore for the avoiding and abolishing of fained, covenous and fraudulent feoffments, gifts, grants, alienations, conveyance, bonds, suits, judgements and executions, as well of lands, and tenements, as of goods and chattels … which feoffments, gifts, grants, alienations, bonds, suits, judgments and executions have been and are devised and contrived of malice, fraud, covin, collusion or guile, to the end, purpose and intent to delay, hinder or defraud creditors and others of their just and lawful actions, suits, debts, accompts, damages, penalties, forfeitures, herriots, mortuaries, and reliefs, not only to the lette or hindrance of the due course or execution of law and justice, but also to the overthrow of all true and plaine dealing, bargaining and chevisance between man and man, without the which no common wealth or civill society can be maintained or continued; All and every feoffment, gift, grant, alienation, bargaine and conveyance of lands, tenements, hereditaments, goods and chattels … made, to or for any intent or purpose before declared and expressed, shall be from henceforth deemed and taken only as against that person or persons, his or their heires, successors, executors, administrators, and assignes, and every of them, whose actions, suits, debts, accompts, dammages, penalties, forfeitures, herriots, mortuaries and reliefs, by such guileful, covenous fraudulent devises and practices, as is aforesaid, are, shall, or ought to be in any wise disturbed, hindered, delayed or defrauded to be clearly and utterly void, and of none effect …’.

2 The plaintiff seeks to have these two transfers set aside on the grounds that they were effected for the purpose of ensuring that the lands would not be available to satisfy any judgment which she might obtain against him, even though by then no proceedings had actually been commenced, nor even a letter written warning of a possible claim in damages being made. However, the trial judge found as a fact that he had reason to believe by the date of the first transfer in February 1998 that she might seek damages against him in respect of sexual abuse which she alleged he had perpetrated against her during the 1980s when she was a teenager, and about which she had first made complaint to An Garda Síochána in August 1993, because he was interviewed by the Gardaí about those matters immediately following her complaint being made.

3 A number of findings of fact were made by the trial judge before reaching her conclusion that the two transfers of land to his wife without consideration other than ‘natural love and affection’ were fraudulent transactions, and therefore void, within the meaning of s. 10 of the Act of 1634, and that they should be set aside. Counsel for the appellants does not ask this Court to set aside any findings of fact, but rather bases the appeal on the legal ground that a person who seeks to set aside a transfer on the basis that it is void under s. 10 of the Act of 1634 must, at the date of that transfer already be a creditor of the disponer, and not just someone such as the plaintiff who may become his creditor in the future.

4 As found by the trial judge, the first named defendant was aware by 1991 that the plaintiff was claiming that she had been sexually abused by him, and that in August 1993 she had made her first complaint to the Gardaí, immediately following which the first defendant was interviewed by them. She found also as a fact that in February 1998, both defendants met the plaintiff at an All-Ireland dancing competition in Ennis, on which occasion the plaintiff said to the second named defendant in a sarcastic tone ‘bet you are delighted to see me’. She found also that on 26th February 1998 the second defendant became registered as the sole owner of lands at Meenagowan, Co. Donegal on foot of a transfer made in consideration of natural love and affection – in other words a voluntary transfer, and that in January 1999 the first defendant was arrested and charged with 24 counts of indecent assault upon the plaintiff, and further that on 21st March 2000 the second defendant became registered as the sole owner of the family home at Barnhill Park, Letterkenny, again on foot of a voluntary transfer. The trial judge was not persuaded as to the truthfulness of each of the explanations (set out at paragraph 29 of the judgment) that were proffered by the second defendant for these voluntary transfers. The trial judge concluded that the plaintiff had established that on the dates of these transfers, the first defendant had committed repeated tortious wrongs upon her, and that by divesting himself of all of his property for no valuable consideration he had deprived the...