Hamilton v Dunne

• Jurisdiction: Ireland
• Court: High Court
• Judge: Gannon J.,
• Judgment Date: 14 February 1980
• Neutral Citation: 1982 WJSC-HC 818
• Docket Number: No. 4687P/1979
• Date: 14 February 1980

HAMILTON v. DUNNE

BETWEEN:

ANNE HAMILTON

Plaintiff

and

CHARLES ROBERT FRANCIS HAMILTON AND FRANK DUNNE

Defendants

1982 WJSC-HC 818A

No. 4687P/1979

THE HIGH COURT

Gannon J.,

1 Major Hamilton, the first defendant, and his wife Anne Hamilton, the plaintiff, and their two children live at Hamwood House, near Dunboyne, County Meath, a property comprising 215 acres with a residence, a gatelodge, a steward's house, a garden cottage and out-offices. There are roughly 180 acres of good arable land well sheltered by woodlands and with gardens and lawns. Major Hamilton has a valuable herd of Charollais cattle which he has himself bred and Mrs. Hamilton has thoroughbred horses and mares from which she breeds foals for annual sale. They engage in market gardening. Their daughter and son are now both over 21 years. The property has been in the Hamilton family since 1760 and Major Hamilton's forebears were land agents of the Dukes of Leinster. When he end Mrs. Hamilton came to live there in 1961 the house and farm were not in very good condition as his father, who was an old man, had not kept them up. Each of them devoted a lot of time and personal work and attention to the property then and since, and both have become very attached to it as a home. The thought of leaving it is disturbing and distressful to each of them, but particularly to Mrs. Hamilton.

2 Early in 1972 Major Hamilton engaged the services of Mr. Denis Mahony of Messrs. Keane Mahony and Smith, Estate Agents and Auctioneers to see if, without advertising or publicity, a purchaser could be found for the property, and to see if an alternative place of larger acreage and farming potential could be purchased without loss. The reason given was that Major Hamilton found the expense of up-keep and maintenance of the residence, out-offices, buildings and farm from year to year greater then he could cope with from the income being earned and he had been compelled to resort to the sale of investments. His expectation was that he could get an alternative property with smaller and more manageable residence and ancillary buildings of nearly twice the acreage in County Westmeath or County Kildare for the price he expected to receive for Hamwood. He considered £150,000 was the best price he could get for the property in January 1972 and he believed he could buy two acres for the price of every one sold. On these matters he took the advices of Mr. Denis Mahony who confirmed his opinion on values and expectations. He did not want to leave Hamwood but he felt compelled to make the decision under the force of economic necessity and he considered the decision the best for his home, his wife and family. Mrs. Hamilton objected and protested her objections. She was consulted at all stages and her wishes and feelings were considered and taken into account and she was aware of the instructions given to Mr. Denis Mahony. She made it clear that she would not consider any place as an alternative to Hamwood, and made it clear to Mr. Mahony that there was no purpose in showing her or inviting her to see any intended alternative places with a view to purchase.

3 By the 13th June 1972 a firm offer had been received by Mr. Denis Mahony from Mr. Frank Dunne, the second defendant herein, and Major Hamilton and Mrs. Hamilton attended at Mr. Mahony's offices to discuss it and to decide on what to do. Although the end result of the discussion was that Major Hamilton agreed to sell to Frank Dunne for £150,000 and authorised Mr. Mahony so to inform Frank Dunne's Solicitors, Mrs. Hamilton was herself opposed to it. As she had no legal or equitable estate or interest in the property which might require her to join in the sale it was not necessary to have her consent at that time. She did not want to leave Hamwood because the two children then were still at school-going age, because she thought moving to a different area might be imprudent at a time of political-type troubles, and because she had personally become so attached to the house, the property, her activities there, the environment and neighbours. Both Major Hamilton and Mr. Mahony thought that the agreed sum was the best that could be got at the time, and that they were at the best time to buy land as well as to sell in order to get the best bargain. Although she accepted that her husband's assessment of the financial situation was correct, Mrs. Hamilton wanted to postpone the decision in the hope that it would never be made. It was made, and the solicitors for both Frank Dunne and Major Hamilton were so informed, and got in touch with each other within the month to set about completion of the sale. The sale proceeded notwithstandilng that no formal written contract had been signed.

4 Because of Mrs. Hamilton's opposition Major Hamilton declined to sign the contract prepared by the solicitors and proceedings for specific performance of the agreement for sale were commenced in November 1972. Because he felt legally and morally bound to do so and under threat of judgment in the proceedings Major Hamilton signed the contract for sale on the 25th January 1973. To the contract was added a special provision postponing the closing date to the 25th January, 1975 unless Major Hamilton should give three months notice to close on an earlier date. The matter became one of such grave anxiety to Mrs. Hamilton that her health, physical and mental, deteriorated and she came under medical care for about two years. Major Hamilton did not realise until after he and Mrs. Hamilton attended in their auctioneer's office in June 1972 and after he had signed the contract, the depth of her opposition. Because of his anxiety for the welfare of Mrs. Hamilton and of the home Major Hamilton too became anxious to retain Hamwood while remaining convinced of the economic necessity of selling and conscious of the legal and moral obligations of his position. Through his solicitors he had endeavoured, and with his assent and approval Mrs. Hamilton personally had approached the purchaser, Mr. Frank Dunne, to induce the latter to release Major Hamilton from the contract in order that Hamwood would not be sold. The furthest Mr. Dunne could be persuaded to go was to allow Major and Mrs. Hamilton to remain in possession of the residence and one acre of lend for the rest of their lives. The specific performance claim came on for hearing on the 1st December 1976 and the order sought was made by the Court on the 21st April 1977 directing the closing of the sale to take place on the 1st February 1978. This order was not complied with, and upon further application to the Court by the purchaser Major Hamilton gave an undertaking to the Court on the 28th July 1978 to deliver possession of the property by September 1979. This he did not do. On the 26th July 1979 Mrs. Hamilton commenced the proceedings now before the Court in which she seeks to invoke the provisions of the Family Home Protection Act 1976to prevent the sale going through. On the 3rd August 1979 Mrs. Hamilton registered in the Registry of Deeds pursuant to section 12 of the 1976 Act notice of her marriage to Major Hamilton and of her interest in the property.

5 With the passage of time many changes have occurred in the seven years since the unperformed written contract was entered into on the 25th January 1973. The opportunities and ability to make practical use of the land by farming improved very considerable but receded somewhat in the past 12 months. The value of lands increased four-fold reaching its peak in 1974 and receding very little since then putting the purchase of a practical alternative now out of reach. The plaintiff's daughter and son have reached the age when they may be expected soon to become independent and to make plans for leaving home. But at all times Mrs. Hamilton's opposition to the sale remains the same, namely, that because of her personal affection for and attachment to the residence, land and environment she did not want to leave it. She expressly disclaimed having any reasons based on financial considerations for her opposition to the sale and she accepted that her husband had made the decision which he had thought best in the interests of the family and of the home although it conflicted with his own wishes and the Hamilton family associations for many generations. At all times there has been accord and co-operation in the family and shared decisions and open discussion and understanding between Major Hamilton and Mrs. Hamilton on all matters. In all respects there has been, and still is, a harmonious family relationship. Major Hamilton accepts and understands Mrs. Hamilton's emotional attachments and anxiety not to have to leave Hamwood, but while he too feels the same in these respects, he accepts that he must, and he says he is willing to, honour his agreement and perform his contract. For her part Mrs. Hamilton accepts that because of his considerable experience in management, control, and supervision of land and farming activities and the support and maintenance of the home and family Major Hamilton's judgment was sound and reasonable in making the agreement but she would have preferred to put up with whatever hardship might have been involved in order to retain Hamwood.

6 The present proceedings were commenced by Mrs. Hamilton by plenary summons issued on the 20th July 1979 and in them she claims a declaration that the transfer to Frank Dunne by Major Hamilton of Hamwood House is void by virtue of section 3 of the Family Home Protection Act1976. Section 3 of the 1976 Act, which became law on the 12th July 1976, upon which Mrs. Hamilton bases her claim in these proceedings and intended to be binding on the vendor and purchaser namely Major Hamilton and Mr. Frank Dunne is as follows:

7 2 "3(1) Where a spouse, without the prior consent in writing of the other spouse, purports to convey any interest in the family home to any...