McDonagh v Denton and Another
| Jurisdiction | Ireland |
| Judge | O'Sullivan J. |
| Judgment Date | 15 April 2005 |
| Neutral Citation | [2005] IEHC 127 |
| Docket Number | [Record No. 18180P/2001] |
| Court | High Court |
| Date | 15 April 2005 |
[2005] IEHC 127
THE HIGH COURT
BETWEEN
AND
REGISTRATION OF DEEDS ACT 1707 S5
KEANE EQUITY & THE LAW OF TRUST IN THE REPUBLIC OF IRELAND 1988 PARA 3.11
KEANE EQUITY & THE LAW OF TRUST IN THE REPUBLIC OF IRELAND 1988 PARA 15.09
SNELL'S EQUITY 13ED P640
GREASLEY v COOKE 1980 1 WLR 1306
SNELL'S EQUITY 27ED P565
MOORGATE MERCANTILE COMPANY LTD v TWITCHINGS 1976 1 QB 225
CRABB v ARUN DISTRICT COUNCIL 1975 3 AER 865 1976 CH 179
HAUGHAN & ORS v RUTLEDGE 1988 IR 295
INJUNCTIONS
Trespass
Registration of deeds - Prior registration of a subsequent deed - Laches - Estoppel by representation - Detriment - Whether laches defence to an application for permanent injunction - Whether inactivity or apparent acceptance amounted to representation for purpose of doctrine of estoppel - Whether works of maintenance and expenditure of outlay amount to detriment for purpose of estoppel - Whether denials and assertions made by plaintiff in context of specific performance proceedings can be relied uponby defendant in context of injunctive proceedings - Injunction granted (2001/18180P - O'Sullivan - 15/4/2005) [2005] IEHC 127
MCDONAGH v DENTON
Facts: the plaintiff purchased a plot of land in 1981. The vendor subsequently sold the remainder of her estate to the defendants. The defendants registered the lands purchased and included in the registration the plot which the plaintiff had previously purchased. The defendants were subsequently informed by the vendor’s solicitor that the plot in question had been previously sold to the plaintiff. A year later the plaintiff registered the same plot. The plot was allowed become derelict and some years later Dublin county council served notices on the parties to clear the site. The defendants went into possession of the plot in 2001 and cleared it as the plaintiff had not received his notice. The plaintiff then sought injunctions against the defendants and a declaration that they were estopped by their conduct from asserting that the plot was included in their prior registered deed.
Held by O’Sullivan J in ordering that the defendants refrain from interfering with the plaintiff’s beneficial ownership, occupation, possession and enjoyment of the disputed plot that, prima facie, by section 5 of the Registration of Deeds Act 1707, the plaintiff’s deed should “be deemed and adjudged as fraudulent and void” as against the defendants’ prior registered deed but that an equity arose in favour of the plaintiff due to estoppel. That four conditions had to be satisfied for such an estoppel to arise, namely detriment, expectation or belief, encouragement and no bar to the equity. That where one solicitor formally raises with another the question of his client’s title and subsequently asserts his client’s title to that other solicitor, both had to be aware that it was being engaged in for the purpose of relying on that title and the fact that the defendant’s solicitor did not reply to the plaintiff’s assertion of his title to the plot amounted to a representation on behalf of the defendants that they were not challenging the plaintiff’s assertion as to his title. The plaintiff then relied on that representation to his detriment in contracting with a third party for the sale of the plot.
Reporter: P.C.
By deed dated 28th August, 1981, the plaintiff purchased from the late Margaret L. Stewart a plot of ground (hereinafter "the disputed plot") situated behind the back gardens of Nos. 57–61 Cowper Road and those of Nos. 1–6 Fortfield Gardens in Rathmines, County Dublin. The disputed plot was accessed by a laneway from Fortfield Gardens and surrounded by a circulation laneway for the use of approximately ten garages giving onto these laneways.
The late Margaret L. Stewart died on 21st July, 1984 and her cousin James Stewart was appointed her personal representative.
By deed of 5th September, 1986, James Stewart conveyed to the defendants a property which I shall refer to as Fortfield House (which lies at the corner of Cowper Road and Fortfield Gardens).
Fortfield House was conveyed by assignment of a leasehold interest comprised in an indenture of lease dated 24th March, 1934. This lease comprised not only the dwelling house known as Fortfield House but a number of ground rents from properties adjoining it, and, the disputed plot.
The deed of 28th August, 1981 to the plaintiff carved the disputed plot out of the take comprised in the 1934 lease.
The deed of assignment to the defendants was registered at 10.10 a.m. on the 10th October, 1986 in the Registry of Deeds.
The plaintiff's deed was registered on 23rd October, 1987 in the Registry of Deeds.
In January, 2001 notices were sent by the Derelict Sites Section of Dublin Corporation to both the plaintiff and the defendants. The notices stated that there had been complaints about the disputed site saying that it was neglected, derelict, and in an unsightly condition and required the recipients to remove all rubbish, cut back and remove all overgrowth, fence and secure the site against illegal access and dumping and inform the Section of their future proposals for the site.
The notice to the plaintiff was addressed to his then previous home in Greystones, County Wicklow and he did not receive it until several months later.
Shortly after receipt of their notice, at the beginning of February, 2001, the defendants carried out substantial works at the disputed site which included removing trees, shrubs and soil, surrounding the site with a fence, and securing it with a padlocked gate.
The plaintiffs commenced these proceedings by plenary summons dated 12th December, 2001 seeking injunctions against the defendants, damages for trespass, and a declaration that the defendants are estopped by their conduct from asserting that the disputed plot is included in their deed.
Prima facie in the above circumstances by s. 5 of the Registration of Deeds Act, 1707, the plaintiff's deed "…shall be deemed and adjudged as fraudulent and void…" as against the defendants' prior registered deed.
The plaintiff submits, however, that s. 5 of the 1707 Act should not avail the defendants in the present case for a number of reasons, as follows:-
1. The defendants' deed did not contain the disputed plot because it had already been conveyed to the plaintiff;
2. The defendants did not agree to buy the disputed plot;
3. The court should treat the status quo ante as being the situation immediately before the defendants moved in to secure the disputed plot in February, 2001 and on that basis conclude that the defendants would never have been granted an injunction prohibiting the plaintiff's access to the plot if only by reason of laches;
4. The first named defendant is estopped by his conduct from asserting his prior registered deed against the plaintiff's.
Mr. Dwyer S.C. for the plaintiff submits that prior registration of a subsequent deed can do no more than secure priority: specifically, it cannot enlarge the interest conveyed by the deed so as, in this case, to include in it the disputed plot which had already been conveyed to the plaintiff.
There is no question but that the late Margaret L. Stewart intended to and did convey the disputed plot to the plaintiff. That being so, her personal representative simply did not have an interest in the disputed plot to convey to the defendants. Whatever was registered by the defendants it did not include an interest in the disputed plot for this reason.
Mr. O'Donnell S.C., counsel for the defendants, submits that this argument would defeat the entire purpose of the Act of 1707.
It is clear on the evidence that the disputed plot was the subject of an unambiguous agreement between the late Margaret L. Stewart and the defendants. It is equally clear that the disputed plot was conveyed in the plaintiff's deed of August, 1981 (there is a collateral issue in relation to the transfer of the laneway access into it which is irrelevant to this point).
So far as the conveyance to the defendants is concerned, and subject to the next point which deals with the issue of whether the defendants actually agreed and intended to purchase the disputed plot and whether the late Mr. White of Adams Auctioneers actually agreed and intended to sell it to him, it is equally clear, in my view, that the conveyance to the defendants included the disputed plot.
That being the case, it seems to me that the plaintiff's deed is indeed captured by s. 5 of the Act of 1707 and must, as against the deed of the defendants, so far as this point goes, be deemed and adjudged as fraudulent and void.
This submission is made against the background of evidence which shows a probability that the brochure advertising Fortfield House for sale by auction in 1986 referred to an area of land too small to include the area of the disputed plot and did not, it seems, make any reference to a plot separate from the immediate curtilage of Fortfield House itself; and the evidence in the case of the plaintiff's wife and her neighbour Catriona Warfield that they attended at a pre-auction viewing where they were given a brochure but where the auctioneer's representative made no mention of a small plot separate from the house curtilage.
Furthermore, requisitions on title and answers thereto, it is submitted, were consistent only with an intention to deal with the house and curtilage as excluding a separate plot. Replies indicating that there was no separate land were accepted on behalf of the defendants' solicitor, Mr. D'Arcy of Finbar J. Crowley and Co. solicitors. Moreover a search against the land on behalf of the purchasing...
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MB CH 199 2011
...trust (Re Slattery [1917] IR 278), a constructive trust (Murray v Murray [1996] 3 IR 251) or proprietary estoppel (McDonagh v Denton [2005] IEHC 127). At the very least, further questions needed to be asked by the tribunal, suggesting a failure to adopt an inquisitorial approach. 25. I ackn......