McGill v Snodgrass

JudgeMr. Justice Gannon
Judgment Date25 July 1979
Neutral Citation1978 WJSC-HC 2949
CourtHigh Court
Docket Number[P. 149/1977]
Date25 July 1979

1978 WJSC-HC 2949


Southern Circuit

County of Cork



Judgment of Mr. Justice Gannon delivered on the 25th day of July 1979


When the plaintiff and defendant first met in 1963 they were living in Munich where they were each employed in different American-operated Central European radio stations. The plaintiff was married and then living with his wife and seven year old daughter. The defendant, who is an American citizen, was separated from her husband from whom she was divorced in 1964. The plaintiff left his wife and daughter in 1964 and made his home in the defendant's apartment in Munich until 1973 when his wife and daughter went to Australia. They spent holidays together in Ireland, and on one of those, in 1967, the plaintiff purchased the house on two roads twenty-five perches of land in the townland of Leamcon in Carbery West comprised in Folio 55796 Register of Freeholders County Cork of which the plaintiff became registered owner on the 4th of November 1968. This property is the subject matter of an ejectment civil bill on title in Cork Circuit Court served on the defendant on the 2nd of November 1977.


In her defence to the claim the defendant disputes the plaintiff's right to recover possession on grounds which include the following:


2 "5. Further the defendant claims to be entitled to possession of the said premises as beneficial owner jointly with the plaintiff in the following circumstances namely - before and at the time that the said premises were acquired by the plaintiff in 1967 it was the common intention of the plaintiff and the defendant that the said premises should be acquired for the mutual benefit of the both the plaintiff and the defendant and that the plaintiff and the defendant should be entitled jointly to the beneficial interest therein and the defendant in the years between 1967 and 1973 provided for and made money available to the plaintiff out of her income and thereby enabled the plaintiff to spend money on and preserve keep maintain and improve the acid premises out of his income and further in the year 1973 the defendant gave up her then employment in order to end in the years since 1973 did use and occupy the said premises and preserve keep maintain and improve the same and further in the said years since 1973 has spent money on the said premises.


6. Further or in the alternative the defendant pleads that the plaintiff is estopped from claiming that the defendant is not entitled to possession of the said premises by reason of the matters set out at paragraph 5 herein and further by reason of the fact that the plaintiff prior to the defendant's giving up her said employment represented to the defendant that the defendant would not have to give up or leave the said premises and might continue to use and occupy the same as her home in reliance on which the defendant so left her employment and Germany where she was then living and took up possession of the said premises."


In her countercliam the defendant asks for a declaration that the plaintiff holds the said premises in trust jointly for the benefit of the plaintiff and the defendant or alternatively in such manner as to the Court may seem fit. Following the hearing in the Circuit Court on the 18th of October 1978 the Circuit Judge granted the plaintiff an order for possession but made no order on the counterclaim. The defendant appealed to the High Court from this order and with the leave of this Court on the appeal amended her defence by the addition of the following further paragraph

"7. Further or in the alternative the defendant claims that in consideration for the defendant's agreeing to give up her said employment to move to Ireland and to preserve keep maintain and improve the said premises the plaintiff agreed to give the defendant leave or licence to have accommodation in the said premises to use or occupy the same as a home and to remain in possession of the same for so long as the defendant might wish or require. The said leave or licence is coupled with an interest and is irrevocable by the plaintiff and the plaintiff is not entitled to recover possession as alleged."


She also obtained leave to among her counterclaim by the addition of the following further paragraph.


2 "4. An injunction to restrain the plaintiff from determaining or terminating the said licence referred to at paragraph 7


3 "5. £2,000 damages for breach of contract."


Upon the hearing of the appeal the formal proofs in support of the plaintiff's claim were admitted and the defendant gave evidence in support of the affirmative assertions in her defence and counterclaim. The plaintiff gave evidence in reply. The facts disclosed were that they commenced to live together as though husband and wife in her flat in Munich in 1964 and on holidays in Ireland until his employment took him to America towards the end of 1973. As her marriage had been lawfully dissolved she was free to marry, but he could not or would not seek a dissolution of his marriage. Nevertheless it was their intention to live with each other for the rest of their lives. Her flat was provided for her by her employers but any expenses in connection with it and all housekeeping and the running of her car were at her expense. He used to take her out for meals frequently but all meals in the flat were provided by her. They came to Ireland in 1965 on holiday together and talked about getting a holiday house in Ireland. They came to Ireland in 1966 on holidays together and decided to look for a house in Ireland. When on holiday in 1967 together in Ireland they came upon the house at Leamcon and he decided he would like to buy the house and she approved. It was then a deserted house in bad condition on a good site and he bought it for £1,775. She took no part in the negotiations which he engaged in with the owner and he provided the entire purchase money. The legal requirements for effective transfer of ownership were not completed until November 1968, perhaps because it was necessary to get sub-division and a new Folio and Land Certificate. There was no provision made in that transaction to give her any legal estate or interest in the property nor was this aspect discussed. She believed then that it was a purchase by him of a permanent home for both of them although it had originated with the idea three years earlier of getting a place in Ireland for holidays. They spend their 1968 holidays together camping on the site and working on the cleaning restoring and reparing of the premises and getting in local tradesmen and getting water and electricity supplied. This was the pattern also of their joint holidays for the next few years and they moved furniture into the house from the defendant's flat in Munich. The total cost over the entire period for work of renovation, repairs, decoration and so forth came to £9,750 all of which was paid by the plaintiff. The defendant for her part did a considerable amount of work mostly in the nature of cleaning decoration and supervising tradesmen, and she spent £1,000 of her own money on out-buildings which she said was by way of a present for him. About 1968 the defendant had become friendly with a girl from England to whom she lent half the capital required by this friend to purchase a house at Foilamuck near Ballydehob County Cork. The transfer of that property was effected in 1971 to the joint ownership of the defendant and her friend. By 1973 American interest in radio broadcasting in Central Europe was diminishing and the defendant found that if she were to remain with the company by whom she was employed in Munich she would be required to transfer to America, and this she felt would make impossible her continued association with the plaintiff and with the house at Leamcon. She decided after discussions with the plaintiff to give up her employment and the Munich flat and to live in Leamcon and to avail of a shipping allowance to move furniture from Munich to Leamcon. She received 30,000 D.M. which she invested in America with a view to providing herself with a subsistence income, but her investment, through no fault of hers, became a total loss. She found herself reduced in income from £500 per month approximately to £50 approximately. Towards that end of 1973 the plaintiff too had to go to America for a three month period. It was about this time that the Watergate affair began to stir the news world and as a journalist he became involved in that area of news and his stay in American was extended. During 1974 he became interested in another lady in America, became disinterested in the defendant, correspondence between them ceased and their relationship came to an end.


On these facts Mr. Peart on behalf of the defendant submits that the premises the subject of the claim for possession was purchased by the plaintiff to be a permanent home for both of them in ultimate retirement and so represented to the defendant who in consequence changed her whole circumstences to her detriment in the belief that she had an interest to the extent of an undefined share in the property with a licence under an implied contract to allow her to have the use and occupation of it for as long as she wished. It is his submission that the Court should declare the plaintiff a trustee upon a constructive or implied trust for the defendant of a share or interest proportionate to her contribution whether direct or indirect towards the acquisition...

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