Moore v Moore
| Jurisdiction | Ireland |
| Judge | Mr Justice Paul Gilligan,Ms. Justice Máire Whelan |
| Judgment Date | 26 April 2018 |
| Neutral Citation | [2018] IECA 118 |
| Docket Number | Record number 2014\367 |
| Court | Court of Appeal (Ireland) |
| Date | 26 April 2018 |
AND
AND
AND,
AND
[2018] IECA 118
Record number 2014\367
THE COURT OF APPEAL
Fraud – Death certificate – Property – Appellant seeking a declaration that the first and second respondents sold property by means of deceit, fraud, conversion and/or unjust enrichment – Whether the trial judge erred in law and on the facts in holding that use by the first and second respondents of a death certificate to enable them to claim title to property was simply a mistake rather than a fraud
Facts: The plaintiff/appellant, Ms Maureen Moore, appealed to the Court of Appeal against the judgment of the trial judge as delivered on 12th October, 2010. The appellant's principal ground of appeal was that the trial judge erred in law and on the facts in holding that use by the first and second defendants/respondents, Mr Moore and Ms Maria Moore, of a death certificate attributed to their stepmother to enable them to claim title to the property 100 Mount Tallant Avenue, Harold's Cross in the city of Dublin, was simply a mistake rather than a fraud and the appellant sought an order from the Court of Appeal setting aside the trial judge's finding in this regard and in its place granting a declaration that the first and second respondents sold the property by means of deceit, fraud, conversion and/or unjust enrichment. Further, the appellant sought an order to the effect that the trial judge erred in law and on the facts in finding that the third defendant/respondent, Ms Chetty, was a bona fide purchaser without notice or that she had acquired any valid title or interest therein, that further the trial judge erred in law and on the facts in awarding the third defendant's costs against the plaintiff.
Held by Gilligan J that, following the rationale as expounded in Derry v Peek (1889) 14 App Cas 337, there was no alternative but for the trial judge to come to a conclusion in the particular factual circumstances as found that the first and second respondents committed fraud in the civil meaning of that term by behaving recklessly careless as to whether or not the death certificate relied on pertained to their stepmother, the appellant, and Gilligan J so found.
Gilligan J held that he would set aside the order of the trial judge as regards the finding as made against the first and second respondents and in substitution thereof grant a declaration that the first and second defendants sold the property to the third respondent by means of fraud. Gilligan J held that, in the light of this finding as the third respondent purchased the property without being on notice, on the open market for full value the appellant's appeal from the Order of the trial judge in this regard would stand dismissed. Gilligan J saw no reason to disagree with the trial judge's order that the appellant pay the third defendant's costs of the proceedings in the High Court and he would dismiss the appeal of the appellant in that regard. However, having regard to the finding of fraud as found against the first and second respondents, Gilligan J was satisfied that the appellant was entitled to a full indemnity in respect of such costs from the first and second respondents.
Appeal allowed.
This is an appeal by the estate of the appellant, Maureen Moore, (who died on 16th October 2010), from the judgement dated 10th December 2010 of Mr. Justice Roderick Murphy in the High Court and consequent orders. The appellant contests the determination of the trial judge that the conduct of the first and second named respondents in relying on a death certificate of a person bearing an identical name to that of the appellant for the purposes of selling the premises 100, Mount Tallant Avenue, Harold's Cross in Dublin constituted a mistake rather than fraud. The appellant further appeals against the finding that the third named respondent was a bona fide purchaser for value without notice and an order for costs made in favour of the third-named respondent.
The appellant was born Maureen Dawson on 28th February 1939. She resided with her family at Craven Terrace, North Road, Drogheda, Co. Louth.
Subsequently, the family resided at number 5 Laburnum Square, Drogheda, Co Louth. On 14th May 1960, she entered into a ceremony of marriage with one Edward Russell of Killester, Dublin. She was then aged 21 years. It appears that she resided in Dublin for a time and also in the United Kingdom. That marriage was subsequently dissolved. On 22nd July 1968 the Decree Nisi of divorce issued in Liverpool. On 23rd October 1968 a Decree Absolute of divorce issued. Documentation suggests that at that time she was domiciled in the Isle of Man. Subsequently, she returned to reside in Ireland.
John Gabriel Moore (hereinafter 'the husband'), was born circa 1939. His first wife died shortly after the birth of their second child, the second named respondent Maria Moore on 16th April 1969. The older child, John Moore, the first named respondent to this appeal, was born on 27th May 1967. The first named respondent is a carpenter and the second named respondent is a hairdresser.
In or about the month of October 1970 when he was aged about 31, he came into contact with the now deceased appellant in circumstances where he had advertised seeking a childminder for his two infant children. The appellant who was then also aged 31 took up the position. The children, being the first and second named respondents, were aged three and one years old respectively.
A relationship developed between the husband and the appellant. Seven months after she commenced work as a childminder she married the husband on 28th May 1971 and came to reside permanently in the Moore household in Dublin. Thus, at the commencement of the appellant's marriage the first named respondent John Moore was aged four, and the second named respondent Maria Moore was aged two.
Subsequently, the husband and the appellant purchased the property 100 Mount Tallant Avenue, Harold's Cross in Dublin ('the property'). They were registered as full owners of that property in Land Registry Folio 30984L on 20th February 1978. They held the property as joint tenants.
The marriage was not a happy one. There was a dispute at the trial of the action as to the basis for the domestic discord. There was a conflict of evidence before the trial judge with regard to the extent to which the appellant was violent towards her husband or cruel towards her stepchildren – the first and second named respondents to this appeal – or they towards her.
The apportionment of blame for the disharmony amounts to little more than recondite speculation at this remove in time. It is not of assistance in determining the matters in issue in this appeal.
At all events, the appellant departed the property on about 2nd July 1982. The first named respondent was aged 15 years and the second named respondent was aged 13.
There was some initial cursory contact in about the year 1982 in connection with an application by the appellant for a social welfare payment of deserted wives allowance. It is clear that from 1982 forward the appellant disengaged completely, did not divulge her whereabouts and withdrew all contact with the first and second named respondents and their father, her husband.
It would appear that the appellant was acquainted with William A. James a solicitor who was admitted to the Rolls in 1968 and worked in the firm of B. Vincent Hoey of Drogheda. He became a partner in that firm.
In cross examination at the hearing the appellant denied ever having communicated with the said Mr. William A. James and asserted that he was 'unqualified'.
With regard to the said solicitor the appellant stated 'He lived in our house.'
A letter written by the said firm of solicitors and dated 25th November 1983 addressed to the husband at the property was found by the trial judge to be of relevance in connection with the subsequent conduct of the first and second named respondents and speaks to the central issue as to whether the said respondents in their conduct were reckless in executing the statutory declaration of 3rd May 2002.
The said letter stated;
'We have been consulted by your wife, Mrs. Maureen Moore, in connection with her interest in the property at 100 Mount Tallant Avenue, Terenure. Our client is now anxious to realise her share in the property and we would be obliged for your suggestions as to how this might be achieved.'
The letter was never responded to.
Over 12 years elapsed between the writing of that letter in November 1983 and the death intestate of the husband on 5th January 1996. In the intervening years the appellant had maintained no contact with her stepchildren. Nor, would it appear, apart from the aforementioned letter of November 1983 did she ever contact the husband over the remainder of his life.
It appears that she went to reside in the city of Antwerp in Belgium for many years. She did not at any time disclose her whereabouts to her husband or stepchildren. It was not in dispute that the first and second named respondents had no knowledge as to her whereabouts or whether she was living or deceased as at the date of death of their father in January 1996.
Notwithstanding that her original connection with the children was in a capacity as their childminder she maintained no contact with either of them, and indeed the...
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