Dublin Corporation v Burke

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 09 October 2001
• Neutral Citation: [2001] IESC 81
• Docket Number: 189/01
• Court: Supreme Court
• Date: 09 October 2001

[2001] IESC 81

THE SUPREME COURT

Murphy J.

Geoghegan J.

Fennelly J.

189/01

DUBLIN CORPORATION v. BURKE

BETWEEN

THE RIGHT HONOURABLE THE LORD MAYOR ALDERMEN AND BURGESSES OF DUBLIN

Plaintiff/Respondent

and

THOMAS BURKE

Defendant/Appellant

Citations:

CONVEYANCING ACT 1881

REGUISTRATION OF TITLE ACT 1964 S72

LANDLORD AND TENANT ACT 1980

Synopsis:

LANDLORD AND TENANT

Injunction

Local Authority - Balance of convenience - Damages - Shopping centre -Whether injunctions should have been granted - Whether purchaser of premises had acquired vacant possession - Whether defendant had established tenancy - Landlord and Tenant (Amendment) Act, 1980 - Registration of Title Act, 1964 section 72 (189/2001 - Supreme Court - 9/10/01)

Dublin Corporation v Burke

The plaintiff wished to develop a shopping centre for housing purposes. The defendant maintained that he had a tenancy and a right to occupy certain premises. Injunctions had been issued by the High Court against the defendant and the defendant sought to challenging same. The defendant complained that his premises had been damaged and attempts had been made to prevent him trading. The defendant also claimed that he had been forced to bring a container onto the premises in order to trade. The plaintiff maintained that it had acquired vacant possession of the premises. Mr. Justice Geoghegan was satisfied that it should have been clear to the plaintiff that the defendant was claiming a tenancy. The balance of convenience would lie in refusing the injunctions sought. The defendant had made a prima facie case to trade from the container. The appeal of the defendant would be allowed in full.

JUDGMENT of

Mr. Justice Geoghegan

delivered the 9th day of October 2001 [nem diss]

1 This is an appeal from an order of the High Court (Smyth J.) made the 9th of July 2001 whereby a number of interlocutory injunctions were granted relating to the appellant's occupation of portion of St. Helena's Shopping Centre, Finglas in the city of Dublin, the property of the respondent. This court has already determined the appeal by allowing it but ruled that judgments would be given at a later date. It was the unanimous view of the court that the appeal should be allowed and in this judgment I am setting out my reasons for arriving at that conclusion.

2 The factual background to this case is that the respondent on the appeal, Dublin Corporation, purchased St. Helena's Shopping Centre in Finglas from the previous owners Frimley Developments Limited, but following on the closing of the sale the appellant, Mr. Burke, was found to be in purported occupation of portion of the property and was hindering the Corporation's intended development project for housing purposes. The Corporation instituted proceedings by way of plenary summons on the 15th of May, 2001 seeking appropriate injunctions and damages and followed that up by a motion to the High Court for interlocutory injunctions. I think it important to set out in full the interlocutory injunctions granted by the High Court. They read as follows:-

3 1. That the defendant, his servants or agents do on or before 2.00 p.m. on Friday the 13th day of July, 2001 remove himself and his property from the site formerly known as St. Helena's Shopping Centre, Finglas in the city of Dublin being the property more particularly described in the Schedule to the General Endorsement of Claim in the plenary summons.

4 2. That the defendant, his servants or agents be restrained until after the trial of this action or until further order of this court from entering upon or occupying the said site.

5 3. That the defendant, his servants or agents be restrained until after the trial of this action or until further order of this court from occupying or otherwise using for any purpose whatsoever a container which the defendant has placed upon the said site on its northern boundary (the defendant to be allowed until 6.00 p.m. on Friday the 13th day of July, 2001 to remove his stock from the said container).

6 4. That the defendant, his servants or agents be restrained until after the trial of this action or until further order of this court from obstructing or in any other way interfering with building and other works carried out by the plaintiff on the said site.

7 In addition, the order of the High Court gave liberty to the plaintiff to take such steps as might be necessary to remove the container in the event of it not being removed by the fixed date. Different considerations apply to the third of the injunctions than apply to the other three and I will, therefore, separate my treatment of them and deal with the third injunction later on in the judgment.

8 The initial case of the Corporation was quite simply put in the grounding affidavit of Bartholomew Courtney, a senior staff officer of the development department of the Corporation. He claimed that the Corporation had acquired vacant possession of the entire site upon completion of the sale. The property was registered land and there was a transfer which was executed and lodged in the Land Registry but registration on foot of it was not yet effected. The kernel of the complaint was set out in paragraph 8 of the affidavit which read as follows:-

"On or about the 5th day of April, 2001, contractors employed by the Corporation moved on to the site in order to secure it by the erection of a palisade fence and to demolish the old shopping centre. The contractors were unsuccessful in carrying out their work in so far as they were confronted by the defendant who climbed on to the roof of a unit from which he appears to have previously traded thereby making it unsafe and dangerous for the Corporation's contractors to complete its work.

It would appear that the defendant has also brought on site and located adjacent to the said unit a freight container from which he is currently trading without the consent or authority of the plaintiff."

9 Mr. Courtney went on to aver that despite requests neither the defendant nor his solicitors had produced any evidence of entitlement to occupy or use any part of the site. That grounding affidavit did not adequately disclose the information available to the Corporation and, particularly, to its law agent relating to Mr. Burke's claims. Legitimate criticism of this was voiced in the High Court on his behalf but the learned High Court judge took the view that as he was dealing with a motion for an interlocutory injunction and not anex parte application for an interim injunction he did not have to concern himself with this aspect of the matter. No argument has been made in relation to this ruling in the Supreme Court and I, therefore, do not propose to express any view on it.

10 Prior to the purchase from Frimley a compulsory purchase acquisition had been considered and there was a public inquiry for that purpose. It is clear from the evidence given at that inquiry that Mr. Burke had a shop on the site. He expressed concern and there was concern expressed on his behalf that if the compulsory acquisition went ahead he would be given a tenancy in a shop when the new development was completed. Mr. Burke himself explained in evidence that his family had a shop on the site for eleven years and that he personally had run it for five years. He said that he supported his family including his mother from the shop. The Corporation was, therefore, put on notice of quite lengthy occupation of a shop on the site and the carrying on of business therein by Mr. Burke, and putting it at its very least, the natural assumption must have been that he was a tenant of the predecessor in title. It seems clear, however, from Mr. Courtney's grounding affidavit that the Corporation considered they had vacant possession once they were assured by the vendor that they had it and, of course, they had got those assurances in the form of replies to requisitions on title. As the law agent for the Corporation would have well known, such assurances and replies to requisitions are not of any assistance to a purchaser if in fact there is a person in occupation and they are even of less assistance if that person has some kind of right or title to occupy. The vendor in this case transferred"as beneficial owner" and, therefore, the Corporation would have the benefit of the covenants as to title implied by the Conveyancing Act, 1881. If they found there was a clog on their title with vacant possession they would, no doubt, have recourse by way of action for damages against the vendor, but all of that is res inter alios acta and this court is not concerned with it. S. 72 of the Registration of Title Act,1964sets out the burdens which are without registration to affect registered land. Two of them are relevant to this case. They are at (i) and paragraph (j) and read as follows:-

11 i "(i) Tenancies created for any term not exceeding twenty-one years or for any less estate or interest, in cases where there is an occupation under such tenancies;

12 ii (j) the rights of every person in actual occupation of the...