Everyday Finance Dac v Mary Burns

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 22 February 2021
• Neutral Citation: [2021] IEHC 105
• Docket Number: 2018 No. 4100P
• Court: High Court
• Date: 22 February 2021

Between

Everyday Finance Dac

Plaintiff

and

Mary Burns

Gerald Burns

Defendants

[2021] IEHC 105

2018 No. 4100P

THE HIGH COURT

Remittal – Discretion – Concurrent jurisdiction – Defendant seeking to remit the proceedings to the Circuit Court – Whether the High Court and the Circuit Court enjoyed concurrent jurisdiction in the proceedings

Facts: The second defendant, Mr Burns, applied to the High Court for remittal of the proceedings to the Circuit Court. The proceedings had been taken pursuant to s. 74 of the Land and Conveyancing Law Reform Act 2009. The case, as pleaded, was that the first defendant, Ms Burns, transferred certain lands to Mr Burns, her son, at a time when those lands were subject to a charge registered in favour of the plaintiff’s predecessor in title. Everyday Finance DAC was substituted as plaintiff by order dated 11 January 2021. The second defendant had filed a full defence to this claim. The motion came on for hearing before Simons J on 8 February 2021. There was some debate before him at the hearing as to whether the High Court and the Circuit Court enjoyed concurrent jurisdiction in the proceedings.

Held by Simons J that the proceedings were of a type in respect of which the High Court and the Circuit Court enjoyed concurrent jurisdiction, given that all sides were agreed that the market value of the land did not exceed three million euro. He was satisfied that an order for remittal should be made: first, the case as pleaded did not give rise to any novel issue of law or present complex facts such as might benefit from a hearing before, and a written judgment of, the High Court; secondly, not only were the relevant lands located within the jurisdiction of Cork Circuit Court, the principal witnesses all appeared to be resident there also.

Simons J held that an order would be made remitting the proceedings to the Circuit Court in Cork.

Application granted.

JUDGMENT of Mr. Justice Garrett Simons delivered on 22 February 2021

INTRODUCTION

1 This judgment is delivered in respect of an application to remit the within proceedings to the Circuit Court. The proceedings have been taken pursuant to section 74 of the Land and Conveyancing Law Reform Act 2009. The case, as pleaded, is that the first named defendant transferred certain lands to her son, the second named defendant, at a time when those lands were subject to a charge registered in favour of the plaintiff's predecessor in title. (Everyday Finance DAC was substituted as plaintiff by order dated 11 January 2021). The second named defendant has filed a full defence to this claim.

2 The application for remittal is made on behalf of the second named defendant. The motion came on for hearing before me on 8 February 2021.

CONCURRENT JURISDICTION

3 There was some debate before me at the hearing as to whether the High Court and the Circuit Court enjoy concurrent jurisdiction in the proceedings. Counsel on behalf of the second named defendant had, initially, suggested that the lands should be regarded as being held as part of a “principal residence”; and that this might have the consequence that the Circuit Court enjoys exclusive jurisdiction. This appears to have been intended as a reference to the rules governing jurisdiction under section 101 of the Land and Conveyancing Law Reform Act 2009. This section indicates that the Circuit Court has exclusive jurisdiction in possession proceedings in respect of “housing loans” as defined.

4 Counsel, very sensibly, did not press this point. The argument is untenable for two reasons. First, there is no evidence before the court to indicate that the lands the subject-matter of the application are a principal residence. Rather, the second named defendant's own solicitor describes the lands as comprising farmlands and outbuildings. (See paragraph 6 of Ms. Hayes' affidavit of 6 November 2018). There is nothing in the papers before me to suggest that, in truth, the lands form part of a larger overall holding which should be regarded as constituting a principal residence. It also appears that the underlying loan is a commercial loan, and would not meet the definition of a “housing loan”. Further, the loan had been entered into prior to the commencement of the Land and Conveyancing Law Reform Act 2009.

5 Secondly, and in any event, the jurisdictional rules under section 101 do not govern an application to set aside a fraudulent conveyance. Section 101 is concerned instead with the allocation of jurisdiction in what might be described as mortgage suits, namely proceedings where it is sought to enforce a mortgage or charge by way of an order for possession or an order for sale. Section 101 does not govern jurisdiction under section 74. For the reasons explained by the Court of Appeal in its judgment in Allied Irish Bank v. Gannon [2017] IECA 291; [2018] 2 I.R. 239, the High Court and the Circuit Court enjoy concurrent jurisdiction in cases under that section.

6 The parties appeared to agree, ultimately, that the jurisdiction in these proceedings is grounded in paragraph 21 of the Third Schedule of the Courts (Supplemental Provisions) Act 1961, and is subject to an exclusionary threshold of three million euro, i.e. the Circuit Court does not have jurisdiction (except by consent of all necessary parties) in cases where the market value of the lands exceeds that sum. The parties are also agreed that the exclusionary threshold is not exceeded in this case.

7 Counsel for the second named defendant submitted that section 53A of the Civil Liability and Courts Act 2004 (as inserted by the Courts Act 2016) has the consequence that, in cases where the market value of the relevant lands is below the three million euro threshold, then the Circuit Court has sole jurisdiction. With respect, the section merely creates a presumption, until the contrary is proved, that the market value of land does not exceed the monetary amount prescribed. It is merely an evidential presumption and does not govern the allocation of jurisdiction.

8 In summary, the proceedings in the present case are of a type in respect of which the High Court and the Circuit Court enjoy concurrent jurisdiction, given that all sides are agreed that the market value of the land does not exceed three million euro.

HIGH COURT'S DISCRETION TO REMIT

9 The remittal of proceedings from the High Court to the Circuit Court is governed principally by two statutory provisions: (i) section 25 of the Courts of Justice Act 1924, and...