Gannon v Evans

• Jurisdiction: Ireland
• Judge: Mr. Justice Declan Budd
• Judgment Date: 28 July 2005
• Neutral Citation: [2005] IEHC 379
• Court: High Court
• Docket Number: [Record No. 2005/151CA]
• Date: 28 July 2005

[2005] IEHC 379

THE HIGH COURT

THE CIRCUIT COURT

DUBLIN CIRCUIT COUNTY OF THE CITY OF DUBLIN

[Record No. 2005/151CA]

[Circuit Court Record No. 1997/4483]

GANNON v EVANS

IN THE MATTER OF AN INTENDED APPEAL

BETWEEN

THOMAS GANNON

PLAINTIFF

AND

SUSAN EVANS

DEFENDANT

RSC O.63r9

RSC O.122 r7

EIRE CONTINENTAL TRADING CO LTD v CLONMEL FOODS LTD 1955 IR 170

HUGHES v O'ROURKE & ORS 1986 ILRM 538

BANK OF IRELAND v BREEN UNREP SUPREME 17.6.1987 1991/11/2545

DALTON v MIN FOR FINANCE 1989 IR 269

BLASCAOD MOR TEORANTA v COMMISSIONERS OF PUBLIC WORKS IN IRELAND 1994 2 IR 372

BLASCAOD MOR NALIONAL HISTORIC PARK ACT 1989CONSTITUTION

PRACTICE AND PROCEDURE

time limits

Enlargement of time - Discretion - Surprise - Appeal from Circuit Court - Defendant not appearing at hearing of trial - One year delay in appealing - Defendant now residing in Australia - Whether defendant properly served with notice of trial - Whether plaintiff delayed in prosecuting claim - Whether bona fide defence to claim - Whether intention to appeal within time - Defendant agreeing to provide security - Éire Continental Trading Co Ltd v Clonmel Foods Ltd [1955] IR 170 applied; Hughes v O'Rourke [1986] ILRM 538; Bank of Ireland v Breen (Unrep SC 17/6/1987) and Dalton v Minister for Finance [1989] IR 269 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 63, r 9; O 122, r 7 - Enlargement of time granted

Facts: This was an appeal from the order of the Master refusing the defendant’s application for an extension of time within which to lodge a notice of appeal in respect of a judgment in the Circuit Court.

Held by Budd J. in setting aside the order of the Master that the defendant, to all intents and purposes, had satisfied the criteria set out in the Eire Continental case and if there was any deficiency in that respect all the circumstances of the justice of the case required the time to be extended for the delivery and filing of the notice of appeal.

Reporter: R.W.

Mr. Justice Declan Budd

1 On 4th July, 2005, this motion came before the High Court with the defendant/appellant seeking:-

2 1. An order pursuant to Order 63 Rule 9 of the Rules of the Superior Courts discharging the order of the Master of the High Court made on 1st June, 2005, refusing the defendant's application for an extension of time within which to lodge a notice of appeal in respect of the judgment granted in the above entitled proceedings in the Dublin Circuit Court on 19th May, 2004;

3 2. An order pursuant to Order 63 Rule 9 of the Rules of the Superior Courts discharging the order of the Master of the High Court made on 1st June, 2005, granting the plaintiff the costs of the said application for extension of time;

4 3. An order pursuant to Order 122 Rule 7 of the Rules of the Superior Courts granting an enlargement of the time within which to lodge a Notice of Appeal in respect of the entire of the judgment and orders, including costs, made by the Circuit Court on 19th May, 2004;

5 4. Such further or other order as to this Honourable Court shall meet and fit;

6 5. Costs.

7 In the background to this motion for an enlargement of time to lodge and serve a notice of appeal in respect of a judgment given in the Dublin Circuit Court on 19th May, 2004, is the tale of the problems which can arise where two people have agreed to live together in a relationship. Both had previously been married and had had children but were separated from their respective spouses.

8 Apparently in or about November, 1988 the plaintiff and the defendant entered into a close personal relationship and began residing together at rented accommodation in Killester, Dublin 5 together with their respective children from each of their earlier marital unions. They subsequently lived at No. 152 Kincora Road, Clontarf, Dublin 3 which was purchased by the parties in the name of the defendant, Susan Evans in July, 1989. Subsequently, in August, 1991, the parties purchased premises at No. 156 Clonliffe Road, Drumcondra, Dublin 3 again in the sole name of the defendant and they lived together in that house. In or about September, 1996, unhappy differences arose between the plaintiff and the defendant such that the plaintiff left the premises at No. 156 Clonliffe Road. The defendant continued to live on in these premises and strongly refuted subsequent suggestions by the plaintiff that he had made direct or indirect contributions towards the acquisition of any beneficial ownership in the premises or that there was any agreement to this effect. Indeed, she maintained that if the plaintiff made any direct or indirect contributions to the household budget, these were not intended to acquire for the plaintiff any beneficial interest in the property but rather were intended to compensate the defendant partially for the considerable monies expended by her on the plaintiff and his children. In further compensation for this expenditure by the defendant, she said that the plaintiff had promised her that she would share in the proceeds of an inheritance which the plaintiff expected to receive on the death of his father.

9 The defendant contends that while the parties did live together for a period between November, 1988, and September, 1996, they had first lived in rented premises and then in a house which was purchased in the sole name of the defendant at No. 152 Kincora Road, Clontarf, Co. Dublin in or about July, 1989. This premises was sold in about August, 1991, and a further premises was purchased at No. 156 Clonliffe Road, Drumcondra in Co. Dublin in the sole name of the defendant.

10 There is a further significant aspect to what lies in the background to this application for an enlargement of time to serve a notice of appeal against the order made in the Circuit Court. The defendant, at all material times since unhappy differences arose between the parties, has maintained that their differences were aggravated by assault and battery perpetrated upon her by the plaintiff. She also contends that at all times the financial responsibility for the discharge of the mortgage repayments on each of the premises fell to her and further that she maintained and improved the premises at Clonliffe Road which became the subject matter of proceedings in the Circuit Court. Indeed, I note that in May, 1997, the plaintiff initiated proceedings against her by way of an equity civil bill in which the plaintiff was seeking a declaration that he is entitled to one half beneficial interest in the premises known as 156 Clonliffe Road and orders consequential on such a declaration. A notice for particulars was served on the plaintiff's solicitor and a reply to this was furnished, including a schedule of repairs and works allegedly carried out by the plaintiff to the premises at Clonliffe Road with an approximate cost thereof, and it was stated at para. 2 of the reply that "the plaintiff and the defendant mutually agreed to purchase the premises at 152 Kincora Road, Clontarf, Dublin 3 in the name of the defendant so as to financially secure and protect the parties” home in the context of the advancement of a stable relationship".

11 When asked at para. 3 as to why the premises at Clonliffe Road was bought in the sole name of the defendant, the reply at para. 3 was "see para. 2 above. Further as the defendant is aware, at the time of purchase of the premises at Clonliffe Road, the plaintiff was involved in litigation against the First National Building Society, and was also involved in litigation brought against him by Equity Bank". In answer to a question as to how the plaintiff calculated that he is entitled to one half beneficial interest in the Clonliffe premises, he replied:-

12 a "(a) By reason of the direct and indirect financial contributions of the plaintiff;

13 (b) By reason of the mutual representations and agreements of the parties concerning their respective beneficial interests in the properties;

14 (c) The legitimate expectation of the plaintiff on foot of the matters pleaded herein;

15 (d) That the entitlement of the plaintiff to one half beneficial interests in the Clonliffe premises is just and equitable in all of the circumstances."

16 A defence was delivered on 27th March, 1998, by which the defendant denied that the plaintiff made direct or indirect contributions which were intended, expressly or impliedly, to acquire a beneficial ownership to be held equally or jointly between the parties. Indeed, she suggested that any such contributions were intended to compensate her for the considerable monies expended by her on the plaintiff and his children and that he had promised her that she would share in the proceeds of an inheritance which he expected to receive from his father. She maintains that each of the premises were purchased in her name consecutively and that she financed the purchases. She does accept that the plaintiff may have made some small joint expenditure. However, she will say that there was not at any time any agreement, expressed or implied, for the plaintiff to acquire a beneficial ownership of any kind in the premises. Furthermore she says that she looked after and cared for the children of the plaintiff and this should be taken into account in relation to any claim to be considered by the Court.

17 From the point of view of this motion she then significantly goes on to say that the unhappy differences which arose between the parties were aggravated by assaults and battery perpetrated upon her by the plaintiff. Indeed, she not only sought an order declaring her to be the sole beneficial owner of the premises situate at No. 156 Clonliffe Road, Drumcondra, but also damages for assault and battery. Furthermore she maintained that at all times the financial responsibility for the discharge of the mortgage repayments on each of the premises...