Harahill v Kane
| Jurisdiction | Ireland |
| Judge | Mr. Justice Haughton |
| Judgment Date | 23 January 2023 |
| Neutral Citation | [2023] IECA 15 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No: 2022 157 |
and
[2023] IECA 15
Whelan J.
Faherty J.
Haughton J.
Record No: 2022 157
THE COURT OF APPEAL
JUDGMENT of Mr. Justice Haughton delivered ex tempore on 23rd day of January 2023
Two matters are listed before the court today, the first to be considered is an application brought by notice of motion issued on 1 July 2022 by the respondent, the Collector General of the Revenue Commissioners (who I shall refer to as the Revenue Commissioners) seeking an order pursuant to the inherent jurisdiction of the court striking out or dismissing the within appeal on the basis that it is bound to fail or is frivolous and vexatious and/or an abuse of the process. It was grounded on an affidavit of Michael Commons, a solicitor in the firm of Ivor Fitzpatrick & Co. sworn on 1 July 2022. The appellant, John Kane, swore a replying affidavit on 12 October 2022 to which Mr. Commons responded in a supplemental affidavit sworn on 20 October 2022.
The second matter before the court is John Kane's appeal from the High Court judgment of Barr J. delivered on 16 March 2022 pursuant to which he appointed a receiver by way of equitable execution over certain property registered in the name of the notice party, Lucy Pinfold, and whereby he rejected her claim to be beneficial owner of that property.
John Kane raises a single ground of appeal to which I shall refer later. Logic dictates that the Revenue Commissioners' motion to dismiss should be determined first and this judgment, therefore, focuses primarily on that motion.
Although the papers are quite extensive, because Mr. Commons understandably exhibits the affidavits and exhibits that were used in the High Court, there is only one ground of appeal raised by John Kane and the present application raises a net point as to whether he should be allowed to pursue his appeal on that ground.
On 3 July 2009, the plaintiff, in his capacity as Collector General of the Revenue Commissioners, obtained a judgment against John Kane to the sum of €4,941,997.52 on account of unpaid taxes. Since that date, the Revenue Commissioners have taken a variety of steps to attempt to execute upon the said judgment against assets owned by John Kane.
By notice of motion dated 11 April 2019 grounded on an affidavit of John Magee, Inspector of Taxes, an application was made pursuant to the provisions of Order 45 Rule 9 of the Rules of the Superior Courts to appoint a receiver by way of equitable execution over the property comprised in folio 3048F of the register in County Cavan.
The property in question consists of now defunct licensed premises formally known as “The Bent Elbow” (hereinafter referred to as “The Bent Elbow”), which had been partly converted into an auto workshop. The property was registered in the ownership of the notice party, Lucy Pinfold, on 22 February 2016. At that time Lucy Pinfold was the partner of John Kane and she subsequently married him on 15 April 2017.
In his first written submission, John Kane informs the Court that they have four minor children of which Lucy Pinfold is sole carer and provider. He says they are now separated and that there are family proceedings currently before the Cavan Circuit Court.
As deposed to by Mr. Commons, it was and remains the belief of the Revenue Commissioners that the property was in fact purchased by John Kane using funds derived from his motor sales and repair business and that it was registered in the name of Lucy Pinfold in an attempt to put it beyond the reach of his creditors and of the Revenue Commissioners in particular.
The receivership notice of motion was served on John Kane on 11 April 2019 and on Lucy Pinfold on 18 April 2019. Importantly, an affidavit of personal service on John Kane was sworn by Graham Macken, solicitor, on 16 April 2019 but he chose not to participate in the application and did not file any affidavits or adduce any evidence. He did not attend before the High Court at any point.
John Kane was imprisoned in early January 2022 for contempt but did not make any application or certainly no formal application to attend court when the receivership application was heard on 8 February 2022.
However, Lucy Pinfold filed two affidavits in response to the application and she contended that the sum of €42,000 that was required to purchase The Bent Elbow was funded entirely by using a combination of savings from her own resources and the proceeds of sale of a tractor. She exhibited statements of a number of bank accounts purporting to support this contention. In response, the Revenue Commissioners, through Mr. Magee's further affidavits, demonstrated that Lucy Pinfold never had sufficient income or means to generate the funds that were required to purchase the property. There was no accumulation of savings in or payments from any of the bank accounts exhibited to her bank accounts that were in any way consistent with her claim to have funded and paid for the property and that the most probable explanation in the circumstances was that the funds were in fact provided by John Kane and that he was the true beneficial owner of the property.
In particular, Mr. Magee exhibited a statement from an Ulster Bank account in the name of a UK company, David Brady and Springboard Mortgage Limited, which appeared to be controlled by John Kane and received monies generated by his undisclosed car sales business, and from which payments were made in August 2015 consistent with payments being made to purchase and develop The Bent Elbow for use as an auto repair business.
That account demonstrates that at or about the time of the purchase on 20 August 2015, there was a cash out payment of €5,000 from that account which would equate to the deposit on the property, and on 21 August 2015 a payment out of that account of €25,000 to Mr. Frank Greene who is an auctioneer. The statement also records further payments out shortly there afterwards, for instance, a cash out payment of €3,000 on 27 August 2015; further cash out of 4,550 on the same day; a cash payment on 4 September of €1,200; and also a significant payment out on 30 November 2015 of €14,724.25. A combination of these payments would of course have been sufficient to discharge the balance of the purchase money on the subject property.
The trial judge found, at paragraph 127 and 128 of his judgment as follows:
“[127.] For the reasons set out herein, the court finds that the notice party did not provide the funds that were used to purchase the property from her own resources.
[128.] The court is satisfied that the true beneficial owner of the property is in fact the defendant.”
That is to say, John Kane. The trial judge continued —
“The court accepts the evidence given by Mr. Magee on behalf of the plaintiff in relation to the probable sources for the funds that were used to purchase the property. In this regard, the court accepts the averments made by Mr. Magee at paras. 17–20 of his affidavit sworn 4 th April, 2019, as further elaborated upon in his affidavit sworn on 11 th September, 2019 at paras. 50–55. The court is satisfied that on the balance of probabilities, the defendant is the beneficial owner of the property.”
It is important to observe that these conclusions are based on findings of fact firmly based on the evidence that was before the trial judge and his careful analysis of that evidence in his judgment.
Accordingly by High Court Order dated 26 May 2022, Barr J. appointed Myles Kirby as a receiver by way of equitable execution over the property.
No appeal from this judgment was lodged by or on behalf of Lucy Pinfold. John Kane did file an appeal and the sole ground raised and the orders sought are as follows:
“The learned judge ignored totally the right of a wife to have her husband's income and in stating that John Kane paid for the property stated she had no income whatsoever or entitlement to any of her husband's income contrary to law, logic and reason and contrary to the Constitution.”
The appellant sought an order that Lucy Pinfold is the owner of The Bent Elbow.
John Kane swore a replying affidavit in response to the notice of motion and that also purports to support his appeal and the following averments are of note.
At paragraph 4 of his affidavit he says:
“[4.] The learned judge is totally wrong in deciding I am the owner of the property and that my wife Lucy Kane has no interest.
[5.] Before entering the judgment, itself I say and I believe that a wife is the owner and entitled to 50% of every property, in a marriage, irrespective of who paid for what. 99% of the wives in this country do not work as they look after the family home and are still entitled to 50% of all the assets.
[6.] But they are not responsible for the debts or any part of them unless they themselves incurred them.
[7.] Lucy Kane had no involvement whatsoever in this case in regard to taxes or any alleged tax improprieties.”
In further averments, he presents arguments in support of the sole ground of appeal based on Article 41 of the Constitution which guarantees to protect the family and recognises that by her life in the home “woman gives to the State the support without which the common good cannot be achieved” and that the State “shall, therefore endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.”
In paragraphs 14 – 17 of his affidavit, John Kane identifies that what he asserts are errors in particular findings of fact by the trial judge.
In paragraph 18 he alleges a “personal vendetta” by Mr. Magee against him.
In paragraph 19 he states that the trial judge was in error “in presuming that the sources of the funds...
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