Lagan Bitumen Ltd v Tullagower Quarries Ltd
| Jurisdiction | Ireland |
| Judge | Ms. Justice Costello |
| Judgment Date | 28 March 2019 |
| Neutral Citation | [2019] IECA 89 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No. 2017 350 |
| Date | 28 March 2019 |
[2019] IECA 89
THE COURT OF APPEAL
Costello J.
Peart J.
McGovern J.
Costello J.
Record No. 2017 350
Property – Plan – Appellant seeking to appeal against High Court judgment in relation to the extent and the boundaries of two folios of land – Whether an error in registration had occurred in the Property Registration Authority
Facts: The defendant/appellant, Tullagower Quarries Ltd, appealed to the Court of Appeal against the judgment of O’Connor J in the High Court on the 2nd May 2017 in relation to the extent and the boundaries of two folios of land in County Clare, Folio 19816F and Folio 52291F. O’Connor J ordered that the plaintiff/respondent, Lagan Bitumen Ltd, had a right of way appurtenant to the lands comprised in Folio 52291F of the Register of County Clare in certain terms and ordered, pursuant to s. 69 of the Registration of Title Act 1964, that the right of way be marked as a burden on the lands comprised in Folio 19816F. He dismissed the defendant’s counterclaim to rectify the plan attached to Folio 19816F so as to reduce the extent of the land comprised in the folio and to vary the boundaries as they existed on the plan. He ordered that the lis pendens registered by the defendant on foot of its counterclaim be vacated, with a stay on that aspect of his order in the event of an appeal. The defendant appealed against the entire judgment. At the hearing, the defendant confined its appeal to the question whether the plan attached to Folio 19816F ought to be rectified pursuant to s. 32 of the 1964 Act on the basis that an error in registration had occurred in the Property Registration Authority (PRA).
Held by Costello J that the trial judge was perfectly correct to refer to the absence of any evidence that the error occurred in the Land Registry. He was correct, in Costello J’s opinion, in holding that the Land Registry acted on foot of the replies to queries raised by it. Costello J held that it was clear that the trial judge understood the case it made, considered it and rejected it on the basis of the evidence adduced or not adduced in this case. Costello J held that the issue of whether the respondent had been unjustly enriched did not arise for determination on this appeal as it was confined to an application for relief pursuant to s. 32; it is only if the court has jurisdiction pursuant to s. 32 that it may then go on to consider whether to order rectification if it may do so without causing injustice to another person. Costello J pointed out that the jurisdiction of the High Court to make an order pursuant to s. 32 is a discretionary one, and she saw no error by the trial judge in the exercise of his discretion in the circumstances of this case. Costello J saw no error in principle which would entitle an appellate court to interfere with the exercise by the High Court of its discretion in the circumstances.
Costello J held that the appeal would be dismissed.
Appeal dismissed.
This is an appeal against the judgment of O'Connor J. in the High Court on the 2nd May 2017 in relation to the extent and the boundaries of two folios of land in County Clare, Folio 19816F and Folio 52291F. O'Connor J. ordered that the plaintiff (herein after the respondent) had a right of way appurtenant to the lands comprised in Folio 52291F of the Register of County Clare in certain terms and ordered, pursuant to s.69 of the Registration of Title Act 1964, that the right of way be marked as a burden on the lands comprised in Folio 19816F. He dismissed the defendant's counterclaim to rectify the plan attached to Folio 19816F so as to reduce the extent of the land comprised in the folio and to vary the boundaries as they existed on the plan. He ordered that the lis pendens registered by the defendant on foot of its counterclaim be vacated, with a stay on that aspect of his order in the event of an appeal.
The defendant appealed against the entire judgment. At the hearing, the defendant confined its appeal to the question whether the plan attached to Folio 19816F ought to be rectified pursuant to s.32 of the Registration of Title Act 1964 on the basis that an error in registration had occurred in the Property Registration Authority (‘PRA’).
Jackie and Paddy Whelan are brothers. Jackie Whelan is a director and the principal shareholder of Tullagower Quarries Ltd. (‘Tullagower’), the appellant. Paddy Whelan was at all material terms a director and principal shareholder of Whelan's Limestone Quarries Ltd. (‘WLQL’). As is not unusual, effectively, the brothers controlled the affairs of their respective companies. Tullagower was the registered owner of the lands comprised in Folio 19816F. It operated a waste cycling and quarry business on the lands. Part of the lands comprised in Folio 19816F consisted of a stone quarry. WLQL was engaged in the business of quarrying and was anxious to acquire part or all of the quarry on Tullagower's lands.
Jackie and Paddy negotiated an agreement on behalf of Tullagower and WLQL. Tullagower agreed to sell part of the lands comprised in Folio 19816F to WLQL, consisting of two separate land-locked parcels of land. There was to be a right of way giving access to the eastern parcel and a second right of way linking the eastern parcel with the western parcel.
WLQL borrowed the money to purchase part of the land of Folio 19816F from Anglo Irish Bank Corporation plc. (‘Anglo Irish Bank’) and agreed to give Anglo Irish Bank a first charge over the purchased land as security for the loan.
Tullagower and WLQL entered into a contract for the sale of the two parcels of land on the 23rd September 2003. The particulars were described as
‘ALL THAT AND THOSE that part of the lands of the townland of Tullagower Barony of Moyarta containing 11.185 acres and being part of the lands comprised in Folio 19816F of the Freehold Register of County… [Sic] as more particularly identified by a blue line on the map attached hereto TOGETHER with a right of way for the Purchaser its successors in title and assigns, its workmen, agents and invitees with or without vehicles plant and equipment at all time and for all purposes in connection with the Purchaser's use and enjoyment of the lands hereby sold for access to and egress from the lands hereby sold over that part of the access way as shown hatched black on the said map and marked with the letters “A” “B” and “C” “D”.’
No copy of the contract with the map attached was produced.
Mr Dan Liddy of WLQL prepared a map of the lands to be sold and purchased dated the 21st November 2003. This showed the two parcels to be transferred outlined in a thick blue line and two rights of way providing access to the eastern parcel between points ‘A’ and ‘B’ and linking the eastern parcel to the western parcel between points ‘C’ and ‘D’, outlined in a thick orange line. The map was a rural place map on a scale of 1:2500. The area to be transferred was 11.185 acres.
The lands in sale were transferred by a deed of transfer dated the 24th February 2004. The lands transferred were set out in the schedule as follows:-
‘ALL THAT AND THOSE that part of the lands in the Townland of Tullagower, Barony of Moyarta in the County of Clare being that part of the property comprised in Folio 19816F of the Register of Freeholders County of Clare outlined in blue on the map attached hereto and containing an area of 11.185 acres or thereabouts statute measure TOGETHER with a right of way for the Transferee its successors in title administrators and assigns, its workmen agents and invitees with or without vehicles plant and equipment at all times and for all purposes in connection with the Transferee's use and enjoyment of the lands hereby transferred for access to and egress from the lands hereby transferred over that part of the access way as shown outlined in orange on the said map attached hereto and marked with the letters “A”, “B”, “C” and “D”.’
Incorrectly, the deed provided that the transferee assented to the registration of the right of way as a burden on its Folio and the transferor applied to the Registrar of Titles for the registration of the right as an appurtenant right on Folio 19816F, though nothing turns upon this.
Despite the fact that the trial judge directed that the PRA's file be produced in court and the fact that the defendant was represented by the solicitor who acted in the sale, no copy of the deed of transfer with the map attached was ever adduced in evidence.
WLQL duly granted Anglo Irish Bank a first legal charge over the lands it had purchased from Tullagower (‘the purchased lands’).
In April 2004 the solicitors for Anglo Irish Bank (‘the chargeholder’), on behalf of WLQL (‘the purchaser’), applied for first registration of a new folio of the purchased land to be carved out of the parent Folio 19816F. Ultimately, the new folio created became Folio 52291F. The application for first registration included a map outlining the purchased lands and the right of way burdening Folio 19816F, the parent folio. On the 3rd June 2004, the Land Registry returned the map and rejected the registration on the basis that the outlining of the property transferred and the right of way was too thick and so did not comply with the Land Registry Rules.
On the 8th June 2004, solicitors for Anglo Irish Bank wrote to the solicitors for WLQL requesting them to furnish an amended map which complied with the Land Registry Rules. Thereafter the matter was left in abeyance for a number of years. Tullagower and WLQL carried on their respective separate businesses on the lands without any disputes concerning their respective rights and...
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