Harlequin Property (SVG) Ltd v O'Halloran
| Jurisdiction | Ireland |
| Judge | Mr. Justice John MacMenamin |
| Judgment Date | 01 November 2019 |
| Neutral Citation | [2019] IESC 76 |
| Date | 01 November 2019 |
| Court | Supreme Court |
| Docket Number | [High Court Record No. 6443P/2010] [Supreme Court Record No. 395/2013] [Court of Appeal Record No. 969/2014] |
[2019] IESC 76
THE SUPREME COURT
O’Donnell J.
MacMenamin J.
Charleton J.
[High Court Record No. 6443P/2010]
[Supreme Court Record No. 395/2013]
[Court of Appeal Record No. 969/2014]
AND
AND
Summary judgment – Fraudulent misrepresentation – Legal representation – Appellant seeking to appeal High Court judgment against him – Whether the appellant had by fraudulent misrepresentation personally induced the respondents to part with large sums of money to the value of the award or more
Facts: The High Court (McGovern J), on the 23rd July, 2013, granted judgment against the first appellant, Mr P O’Halloran, to both respondents, Harlequin Property (SVG) Ltd and Harlequin Hotels and Resorts Ltd (in liquidation), in the sum of €1,575,500 ([2013] IEHC 362). He held that the first appellant had by fraudulent misrepresentation personally induced the respondents to part with large sums of money to the value of the award or more. The money was transferred to Irish bank accounts under the appellant’s control. McGovern J held that there was no evidence that Mr D O’Halloran, the first appellant’s father, had engaged in any unlawful conduct and dismissed the case against him. Mr P O’Halloran appealed the judgment against him. The matter was subsequently remitted to the Court of Appeal, but thereafter transferred back to the Supreme Court on foot of Article 64 of the Constitution.
Held by MacMenamin J that this was, in essence, a “fact case”, where the judge was fully entitled to accept the evidence upon which he proceeded to make sustainable findings, and where he correctly directed himself on the relevant law. MacMenamin J found that even had Mr P O’Halloran been legally represented, it was impossible to conceive how the result would have been any different.
MacMenamin J held that he would dismiss the appeal, and hear counsel on the form of the order, and any ancillary orders, which may arise from the efflux of time since the judgment.
Appeal allowed.
Harlequin Property (SVG) Limited (“HSVG”), the first-named respondent, was incorporated in St. Vincent and the Grenadines (“SVG”) as a special purpose vehicle to build a multi-million dollar resort on the Caribbean island of St. Vincent. The company made an agreement with the government of SVG to that end. It acquired properties for the development in the picturesque Buccament Bay area of the island. At its peak, the project had the potential to employ up to 1,000 construction workers for its duration.
Harlequin Hotels and Resorts Limited (“HHR”), the second-named respondent, was incorporated by the parent group of both respondents to this appeal to operate hotels and resorts throughout the Caribbean. The company sold villas, hotels and property units to investors.
Once it was opened, the Buccament Bay project would have provided significant long-term employment on the island. It is the subject matter of this appeal.
Harlequin sought and received large sums of money from investors for the project. There are aspects of these background dealings which were of questionable legality. The project was described in court proceedings in England as having some of the characteristics of a Ponzi scheme ( Harlequin Property (SVG) Ltd. and Anor. v. Wilkins Kennedy [2016] EWHC 3188; [2016] All E.R. (D) 76, at para. 43).
Unfortunately, the first-named respondent is now controlled by a bankruptcy trustee; the second, a company registered in the Cayman Islands, was placed in liquidation by order of the courts in that jurisdiction on the 11th September, 2018. Part of the background to that unhappy situation is set out in the judgment and order under appeal.
On the 23rd July, 2013, McGovern J. granted judgment against the first-named appellant to both respondents (collectively “Harlequin”, save where otherwise appears) in the sum of €1,575,500 ( [2013] IEHC 362). He held that the first-named appellant (“the appellant”), Padraig O’Halloran, had by fraudulent misrepresentation personally induced Harlequin to part with large sums of money to the value of the award or more. The money was transferred to Irish bank accounts under the appellant's control. McGovern J. held that there was no evidence that Mr. Donal O’Halloran, the first-named appellant's father, had engaged in any unlawful conduct and dismissed the case against him.
Mr. Padraig O’Halloran appealed the judgment against him. The matter was subsequently remitted to the Court of Appeal, but thereafter transferred back to this Court on foot of Article 64 of the Constitution.
Mr. O’Halloran represented himself in this appeal. At the outset of the appeal therefore, the Court explained the legal and procedural framework within which the case would be considered. The Court drew attention to the legal principles applicable to findings of fact made by a High Court judge. By his fluency, command of detail and understanding of the legal issues, Mr. O’Halloran demonstrated that he was well capable of presenting his case on the appeal.
The essence of the High Court judgment can be stated quite briefly. David Ames and Carol Ames were directors of the two Harlequin companies. Mr. Ames was the effective controller of both. Mr. O’Halloran was the director and controller of a group of companies named the “ICE Group”. Harlequin originally embarked on the large development on the Buccament Bay site by way of a subcontract to another developer: Ridgeview. After Harlequin discharged Ridgeview in July 2008, the ICE Group was retained to proceed with construction of the project.
The sums of money involved in this retainer were very substantial. Some of the detail, in the subsequent hearing before McGovern J., was complex. The case ran for 30 days in the High Court. Yet, despite these features, what is under appeal is essentially a fact-based judgment.
McGovern J. made a series of findings of fact regarding misrepresentations which Mr. O’Halloran made, primarily to Mr. Ames of Harlequin. He held that Harlequin relied on these, and that Mr. O’Halloran ignored advices and information available to him which indicated that the project simply could not be completed by the set deadline of the 1st July, 2010. The judge concluded that Mr. O’Halloran induced the two respondent companies to make a series of payments to the ICE Group, and thereafter unlawfully extracted the money from the ICE companies and transferred it to Ireland.
The first stage of the project was to be completed and ready to take guests on the 1st July, 2010. Before then, over the period of September 2008 to May 2010, the parties made a series of agreements for the purposes of constructing the first element of what was to be this resort. The project was to include a marina, a number of restaurants, a diving shop, a reception and a beach bar. The scope of the work, identified in an agreement made on the 20th May, 2009, underwent a number of subsequent iterations. In later meetings on the 23rd and the 24th January, 2010, and the 18th May, 2010, it was altered in scope. By then, the project had been reduced to what was described by the High Court judge as being two restaurants, a swimming pool, 60 cabanas for guests and others to be used for various purposes; an “apartment block 2” to be completed for accommodation, with the hotel staff to reside in cabanas until this was available; some sports facilities; an “apartment block 3” to be completed up to the 5th floor with roof frames fitted; and waterfront and retail villages (para. 18(e) of the High Court judgment). McGovern J. held that Mr. O’Halloran gave undertakings regarding the completion of the project in a series of meetings up to the time ICE was discharged on the 11th June, 2010. During the same period, the judge found that Mr. O’Halloran took funding from ICE and diverted it to his own use.
Two main legal considerations apply in this appeal. The first relates to the legal status of findings of fact, the second to the nature of the tort of deceit arising from fraudulent misrepresentations. In this case, both are closely interrelated. Much depended on how the judge assessed context, identified what was said and done and analysed the intentions of the parties to the transactions.
The first observation must concern findings of fact. The principles governing these findings have been set out in numerous judgments of this Court, including Northern Bank Finance Corporation Ltd. v. Charlton and Ors. [1979] 1 I.R. 149, Hay v. O’Grady [1992] 1 I.R. 210, McCaughey v. Irish Bank Resolution Corporation Ltd. and Anor. [2013] IESC 17, and Leopardstown Club Ltd. v. Templeville Developments Ltd. [2017] IESC 50; [2017] 3 I.R. 707. They are well known and may be dealt with briefly.
Such findings can be seen as falling into two categories: those the answers to which give a factual resolution of conflicting oral testimony, and those the answers to which do not resolve conflicts of such testimony, but are an evaluation of facts found or admitted ( Northern Bank, per Henchy J., at p. 190). Another brief way of describing these two categories is, in the first category, findings of fact, and in the second, inferences from facts. The legal authorities emphasise that an appellate court must proceed on the basis that it did not enjoy the opportunity of seeing and hearing the witnesses as did the trial judge who heard the substance of the evidence, and was able to observe both the manner in which it was given and the demeanour of the witnesses ( Hay v. O’Grady, per McCarthy J., at p. 217).
It...
To continue reading
Request your trial
-
Thomas Condron v Galway Holding Company Ltd and Danmar Construction Ltd and Stephen Treacy and Maureen Treacy
...which permits review.” (para. 24) 62 . The principles were reiterated by the Supreme Court in Harlequin Property (SVG) Ltd. v. O'Halloran [2019] IESC 76, a judgment of MacMenamin J. delivered on 1 November 2019, wherein he observed at para. 15:- “Such findings can be seen as falling into tw......
-
Walsh v an Post National Lottery Company
...process of the court to seek to have it relitigated in new proceedings……”. 36 In Harlequin Property (SVG) Limited v. O'Halloran and anor [2019] IESC 76, the Supreme Court stated: - “The first observation must concern findings of fact. The principles governing these findings have been set ou......