E.G. v E.G.

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 30 March 2012
• Neutral Citation: [2012] IEHC 292
• Docket Number: Record No. 02137/2009
• Court: High Court
• Date: 30 March 2012

G (E) v G (E)

SOUTHERN CIRCUIT

BETWEEN

E.G.

PLAINTIFF

AND

E.G.

DEFENDANT

[2012] IEHC 292

Record No. 02137/2009

THE HIGH COURT ON CIRCUIT

Equity – Land law – Resulting trust – Constructive trust – Partitioning –‘Further and other relief’ - Whether the property in question was transferred to the plaintiff as an unconditional gift or whether it was transferred with the intention that the plaintiff hold the main farm in trust for the joint benefit of herself and the defendant.

Facts The plaintiff appealed against the order of the Circuit Court partitioning the lands in question and awarding her the sum of €30,000. The proceedings were commenced by Equity Civil Bill and the plaintiff pleaded therein that she was the registered owner of the relevant property following the transfer of same from her mother by Deed of Transfer dated 22 April 1999, that the defendant was her brother and was residing in that property. The plaintiff asserted that the defendant unlawfully trespassed upon the property, that he maintained animals thereon and refused to vacate same. The plaintiff claimed various injunctions, an account of all rents and profits received by the defendant from the lands in the six years prior to the commencement of the proceedings, an order for accounts and enquiries and damages for trespass, assault and slander of title and further or other relief and costs. The defendant filed a full defence and counterclaim and relied on a document executed by the parties” mother in 1998 indicating an intention that the defendant should receive half of the lands transferred by her to the plaintiff. He relied on a second, undated document signed by the plaintiff, which confirmed the plaintiff”s intention to transfer in the region of 50% of her mother”s interest in the land to the defendant. The defendant further relied upon a letter dated 2 March 2004 written on behalf of the plaintiff by her solicitor, acknowledging that the plaintiff held 50% of the property transferred to her in a caretaker capacity for her brother. It was conceded at the commencement of the appeal that the most the defendant was seeking was a 50% interest in the property. The defendant had operated the farm on the lands in question with his mother”s acquiescence and ostensibly on her behalf in the years leading up to her death in 2007 and continued to operate it thereafter as if it was entirely his own. The defendant also relied upon the fact that the plaintiff apparently accepted before the Circuit Court that the defendant would be entitled to a 50% interest in the main farm less appropriate allowances for legal fees and taxes both past and future. The plaintiff did not deny signing the documents relied on by the defendant but sought to disown them at the appeal hearing by arguing they were signed under duress at the behest of her sister. The defendant objected to the plaintiff relying on a claim of duress as this claim was not made before the Circuit Court.

Held by Edwards J. in upholding the partition of the property and awarding the sum of €50,000 to the plaintiff: That the plaintiff was not entitled to rely on the claim of duress in circumstances where the defendant was not previously on notice of this claim and where it was not raised at the initial hearing. Furthermore, having regard to the letter dated 2 March 2004 and the plaintiff”s own concession before the Circuit Court she was estopped from denying the defendant”s claim to a 50% beneficial interest in the lands in question. Consequently, the plaintiff held a 50% interest in the property (subject to her entitlement to be re-imbursed for taxes and appropriate outlays incurred by her in respect of that portion) upon a constructive trust, alternatively upon a resulting trust, for the benefit of the defendant. The plaintiff”s claims for damages for trespass, assault, intimidation and slander of title all failed. However, the plaintiff was entitled to be re-imbursed by the defendant to the extent of 50% for expenditure incurred by her personally on behalf of her late mother on the basis that she ought not to have incurred that expense by virtue of her mother”s entitlement to be maintained and supported out of the income from the main farm. The defendant was also obliged to account to the plaintiff for 50% of the rents and profits derived from the main farm from July 2007 to date and the plaintiff was entitled to accounts and enquiries in respect of the rents and profits so derived from the farm. The plaintiff was also entitled to 50% of the cost of stamp duty and associated legal costs. Neither party objected to this Court”s jurisdiction to order partition notwithstanding that this was relief was not specifically claimed and it was proposed to follow the lead of the learned Circuit Court judge and make an order for physical partition on the basis that both sides claimed ‘further and other relief’. It was not possible to partition the land evenly and the partition decreed by the learned Circuit Court judge was the only practical way of partitioning the property. Consequently, having regard to the portion of land awarded to the plaintiff she was entitled to the sum of €50,000 by way of financial adjustment which was to be registered as a debt on the defendant”s portion of the lands.

REGISTRATION OF TITLE ACT 1964 S52(2)

Mr. Justice Edwards

1 This matter came before this honourable Court for hearing on the 3^rd and 4^th November, 2011 by way of an appeal against the Order of the Circuit Court for the Southern Circuit on the 17^th February, 2011.

2 The plaintiff, whose appeal it is, appeared in person and represented herself. The defendant was represented by both senior and junior counsel, and by solicitors instructing them.

3 The appeal, as is required, consisted of a complete re-hearing of the case, following which hearing judgment was reserved. The Court is now in a position to deliver its judgment.

4 The proceedings herein were commenced by Equity Civil Bill dated the 28^th May, 2009. It is pleaded in the Indorsement of Claim to that Equity Civil Bill that the plaintiff is the registered owner of the property comprised in a folio of the Register of Freeholders for the relevant county. Further, it is pleaded that the defendant is the brother of the plaintiff and resides in the property aforementioned, which is located in the southern part of the country.

5 The Equity Civil Bill asserts that the defendant has unlawfully trespassed upon the property comprised in the folio aforesaid; that he has maintained animals thereon and that despite repeated requests and demands has refused to vacate the same.

6 It is further pleaded that the defendant has assaulted and intimidated the plaintiff and has put her in fear. It is also contended that the defendant has asserted an interest in the said lands and has slandered the plaintiff's title thereto.

7 The plaintiff claims various injunctions, an account of all rents and profits received by the defendant from the said lands in the six years prior to commencement of the proceedings, an order for accounts and enquiries (if necessary), damages for trespass, assault and slander of title, further and other relief and costs.

8 The defendant has filed a full defence to the plaintiff's proceedings together with a counterclaim. He admits that the plaintiff is the registered owner of the property comprised in the folio aforesaid, that he is the brother of the plaintiff and that he resides at the address stated. The remainder of his defence consists of a denial and traverse of each and every claim pleaded on behalf of the plaintiff in the Indorsement of claim to her Equity Civil Bill.

9 The following matters are then pleaded by way of counterclaim:

10 2 "1. The plaintiff is registered as owner of the lands comprised in the folio aforesaid further to a Deed of Transfer dated the 22nd day of April 1999. The transfer is a voluntary transfer and consequently the provisions of section 52 (2) of the Registration of Title Act,1964 apply. This provides "Where, however, the Transfer is made without valuable consideration, it shall, so far as concerns the Transferee and persons claiming under him otherwise than for valuable consideration, be subject to all unregistered rights subject to which the Transferor held the land transferred".

11 2. On 28th of April 1998, the plaintiff's and the defendant's mother executed a document which was signed by the mother and the plaintiff and witnessed by a solicitor. This states:

12 'Prior to making any transfer of lands to my daughter, I wish to be placed on record that any such lands transferred to her are in apart caretaker capacity as I have been unable to contact my son, who is abroad. I wish to make it clear that it is my will and intention that my son should receive half of the lands transferred by me. On transferring the lands to my daughter, I appointed as caretaker and executor of this matter.'

13 3. There is a second document which is undated but signed by the plaintiff and witnessed by a solicitor which states:

14 'As per the original contract with my mother, it is my intention to transfer in the region of 50% of my (and my mother's) interest in the land held in folio to my brother at no cost to him save legal fees and taxes (etc) as soon as my current High Court proceedings are complete. This will be a full and final settlement of my contract with my mother is anticipation that my brother returns to farm the land with my mother in the near future."

15 4. There is subsequent and furtherinter partes correspondence acknowledging the defendant's legitimate legal interest and entitlements to the lands/and or part of the lands and hereditaments, comprising the aforesaid folio.

16 The defendant counterclaims for an Order vesting the lands and hereditaments, in the folio aforesaid,...