Lagan Bitumen Ltd v Tullagower Quarries Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Tony O'Connor |
| Judgment Date | 02 May 2017 |
| Neutral Citation | [2017] IEHC 258 |
| Docket Number | [2015 No. 4642 P.] |
| Court | High Court |
| Date | 02 May 2017 |
[2017] IEHC 258
THE HIGH COURT
O'Connor Tony J.
[2015 No. 4642 P.]
Land & Conveyancing – Contract for sale of land – Mistake in contract – Rectification of register – Intention of parties – S. 31(1) of the Registration of Title Act 1964
Facts: The present case concerned the determination of boundaries of the lands between the plaintiff and the defendant. The defendant, by way of defence and counterclaim, sought an order for the rectification of the register. The defendant claimed that by mistake, the area shown to have been transferred in the alleged deed of transfer was greater than the actual area.
Mr. Justice Tony O'Connor refused to grant the desired relief to the defendant. The Court held that the defendant had failed to establish that the parties to contract intended contrary to what was written in the contract in relation to the delineation of boundaries. The Court held that it would not attempt to alter the boundaries set by the Property Registration Authority (PRA) as there was no evidence as to how and when the PRA made the mistakes while plotting the boundaries of the land.
This judgment, by the agreement of the parties at the end of the trial on 15th February 2017, is limited to determining the boundaries of the lands comprised between Folios CE52291F [in respect of which the plaintiff is the transferee according to the Deed of Transfer dated 1st April, 2016, from Whelan's Limestone Quarries Limited (‘ WLQL’) and the receiver appointed to WLQL on 28th January, 2011] and those comprised in Folio CE 19816F registered in the name of the defendant. Once the boundaries are defined, the entitlement to a right of way appurtenant to Folio CE52291F over the defendant's land may be the subject of a further hearing and determination.
The basis for a thirteen year delayed claim for rectification by the defendant constitutes, on the most favourable construction of events for the defendant, an extraordinary tale of alleged lack of attention to detail by two limited liability companies each owned or controlled by two brothers.
In short, the defendant owned by Mr. Jackie Whelan (‘ Jackie’) executed a contract dated 23rd December, 2003 (‘ the 2003 contract’) for the sale of 11.185 acres (4.52660891 hectares) of land in Co. Clare to WLQL, then owned by Mr. Paddy Whelan (‘ Paddy’).
By Deed of Transfer dated 24th February, 2004, (‘ the 2004 transfer’) the defendant transferred to WLQL the parcels of lands which were the subject of the 2003 contract and described in the 2004 transfer as:-
‘All that and those that part of the lands in the town land 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…with or without vehicles…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 and shown outlined in orange on the said map attached hereto and marked with the letters “A”, “B”, “C” and “D”.’
None of the witnesses who gave evidence remembered whether a map was actually attached to the 2003 contract or the 2004 transfer when executed, despite the reference to a map in both. The Court was informed that no map which may have been attached to the original 2003 contract or the 2004 deed was retained by the same solicitor representing the defendant since 2003, up to and including the duration of the trial of these proceedings in February 2017.
Moreover, the Court was further told that the solicitor acting for WLQL in 2004, the solicitors acting for Anglo Irish Bank (‘ Anglo’) which provided loan monies to WLQL for the purchase of the lands and the rates department in Clare County Council, (which was furnished with a map by the defendant's solicitors by letter dated 16th February, 2004, showing the portions of lands transferred) have been unable to produce a copy of a map of the lands transferred.
Even more perplexing is the absence of any map on the file of the Property Registration Authority (‘ PRA’) for the 2004 transfer. Nevertheless, the PRA registered and plotted the lands transferred with the benefit of a map which cannot be located now. That is the situation presented by the parties and particularly by the defendant who now seeks rectification of the 2004 transfer and the alteration of the PRA mapping for Folio CE52291F.
According to the mapping and records of the PRA, Folio CE52291F now shows two separate oblong like blocks containing 4.25 hectares and 0.90 hectares respectively. The total area in CE52291F is now 5.15 hectares or 12.72593 acres.
Folio CE19816F, from which Folio CE52291F was created, now contains 2.38 hectares or 5.88108 acres. It has a narrow stretch of land leading from the N68 (Ennis to Kilrush road) to a block of land surrounding all sides of the small block of CE52291F save for the southern side.
By letter dated 25th March, 2011, the solicitors for Anglo (the lender to WLQL) forwarded a subdivision map to the PRA. The digital mapping section of the PRA asked those solicitors by letters of:-
(i) 27th July, 2011 – whether ‘ the northern and western boundary (shown in blue) align with the extent of the folio boundary showing red?’
(ii) 7th November, 2011 – whether ‘ the subject of the transfer is the portions outlined in blue on the map enclosed’
The Court was given no information about the responses to those requests even though the Court directed that the original PRA file be brought to the Court for the parties and for any relevant submissions arising from observations which may be made.
The defendant alleges that the 2004 transfer and subsequent registration effected by the PRA does not accord with the agreement between Jackie for the defendant and his brother, Paddy, for WLQL in 2003. The defendant seeks inter alia rectification of the 2004 transfer by:-
(a) ‘ amending the area referred to in Part 1 of the schedule thereto…’ ‘from 11.185 acres to 8.45 acres’; and
(b) ‘ attaching thereto the map prepared by Hardiman McMahon dated 6th October, 2015 (‘ the HMcM map’), to identify the areas actually transferred.
together with orders pursuant to statute or equity directing the PRA to rectify the Land Registry maps attached to Folios CE19816F and CE52291F.
The 12.72593 acres presently registered in the PRA for Folio CE52291F does not accord with the figure of 11.185 acres in the 2004 transfer.
The defendant pleaded in its Defence and Counterclaim delivered on 22nd June 2016 that ‘ the correspondence between’ the solicitors for Anglo and the PRA together with the maps submitted did not reflect the agreement between WLQL and the defendant. The Defence pleaded that those solicitors were guilty of negligence, breach of contract, misrepresentation, negligent misstatement, and slander of title for which Anglo and the plaintiff among others ‘ are jointly and severally liable therefor to the Defendant.’ It is important to stress that neither the said firm of solicitors nor Anglo were represented at the trial of these proceedings. No one who worked at the relevant times in the said firm of solicitors, in Anglo or in the PRA was called to give evidence.
During the trial Jackie found it difficult to hear questions at times. Nevertheless, he satisfied this Court that he was an experienced businessman and a civil engineering contractor who still controls the defendant with experience and understanding of maps and acreage. Under cross examination he said that he ‘walked the place’ with Paddy during which they decided what WLQL sold and what the defendant bought. Significantly, Jackie did not state when he ‘walked the place’ with his brother and particularly whether the walk occurred before or after the execution of the 2003 contract or the 2004 deed even though he was able to mention that that they ‘were working there together for...
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