Murray v Murray
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 11 May 2022 |
| Neutral Citation | [2022] IEHC 295 |
| Court | High Court |
| Docket Number | [Record No. 2016/8728 P] |
[2022] IEHC 295
[Record No. 2016/8728 P]
[Record No. 2015/7471 P]
THE HIGH COURT
Maintenance – Damages – Fraudulent conveyance – Plaintiffs seeking judgment for failure to provide maintenance and support – Whether transfers constituted fraudulent conveyances
Facts: In the first action (Record No. 2016/8728 P) (the maintenance action), the plaintiffs, Mr P Murray and Mr Fitzgerald, were the personal representatives of the estate of one Ms P Murray, who died on 30th September, 2016. The plaintiffs sought judgment against the first defendant, Mr N Murray, for his failure to provide maintenance and support for his mother, Ms P Murray, during her lifetime, which was a condition upon which certain lands comprised in folios 18371, 8582 and 10346 of the register of freeholders, Co. Clare, were transferred to him by his father by Transfer dated 2nd July, 1991. The plaintiffs obtained judgment in default of appearance against the first defendant and the second defendant, Ms A Murray, on 11th February, 2019. The plaintiffs also sought a declaration that the burdens which were registered on the folios in respect of the right of support and maintenance enjoyed by Ms P Murray during her lifetime and/or the monetary and capital value thereof, rank superior and prior to a judgment mortgage registered in favour of the third defendant, Allied Irish Banks plc, against the interests of the first defendant in the said folios, which said judgment was obtained by the third defendant on 24th June, 2014, in the sum of €1,123,901.21, together with €384 for costs, which was registered as a judgment mortgage on the folios on 16th September, 2015. In the second action (Record No. 2015/7471 P) (the section 74 proceedings), the plaintiff, Allied Irish Banks plc, sought a declaration that the conveyance by the first defendant, Mr N Murray, to his ex-wife, the second defendant, Ms A Murray, of the lands comprised in folios 8582, 10346 and 18371, Co. Clare, on 29th December, 2011, pursuant to a purported separation agreement between the defendants dated 22nd December, 2011, is void as a fraudulent conveyance contrary to s. 74(3) of the Land and Conveyancing Law Reform Act 2009.
Held by the High Court (Barr J) that, in relation to the proceedings bearing record number 2016/8728P, notwithstanding that judgment in default of appearance was obtained by the plaintiffs against the first and second defendants, the court would refuse to make any award damages against them, on the basis that the plaintiffs had failed to prove that any loss was suffered by Ms P Murray, or her estate. The court dismissed the plaintiffs’ action against the defendants and each of them as such action was statute barred having regard to the provisions of the Statute of Limitations 1957. The court refused to grant the declaration sought at subparagraph (b) of the amended statement of claim.
Barr J held that, in relation to the proceedings bearing record number 2015/7471 P, the transfers effected by Mr N Murray of his interest in the folios in April 2011 and December 2011, constituted fraudulent conveyances within s. 74 of the 2009 Act. The court would make an order declaring void the transfer of the interests of the first defendant to the second defendant of his interest in the lands and property comprised in folios 8582, 10346 and 18371, of the register of freeholders, Co. Clare. The court dismissed the defendants’ counterclaims against the plaintiff.
First action dismissed. Relief granted in second action.
JUDGMENT of Mr. Justice Barr delivered on 11th day of May, 2022.
This judgment concerns two sets of proceedings that are interrelated. In the first action, being the action entitled Patrick Murray and Phil Anne Fitzgerald v. Noel Murray, Angeline Murray and Allied Irish Banks plc (Record No. 2016/8728 P) (hereinafter “the maintenance action”), the plaintiffs are the personal representatives of the estate of one Philomena Murray, who died on 30th September, 2016. In this action, the plaintiffs are seeking judgment against the first defendant for his failure to provide maintenance and support for his mother, Philomena Murray, during her lifetime, which was a condition upon which certain lands comprised in folios 18371, 8582 and 10346 of the register of freeholders, Co. Clare, were transferred to him by his father by Transfer dated 2nd July, 1991. The plaintiffs obtained judgment in default of appearance against the first and second defendants on 11th February, 2019.
The plaintiffs also seek a declaration that the burdens which were registered on the folios in respect of the right of support and maintenance enjoyed by Philomena Murray during her lifetime and/or the monetary and capital value thereof, rank superior and prior to a judgment mortgage registered in favour of the third defendant against the interests of the first defendant in the said folios, which said judgment was obtained by the third defendant on 24th June, 2014, in the sum of €1,123,901.21, together with €384 for costs, which was registered as a judgment mortgage on the folios on 16th September, 2015.
In the second action, being the proceedings entitled Allied Irish Banks plc v. Noel Murray and Angeline Murray (Record No. 2015/7471 P) (hereinafter “the section 74 proceedings”), the plaintiff seeks a declaration that the conveyance by the first defendant to his ex-wife, the second defendant, of the lands comprised in folios 8582, 10346 and 18371, Co. Clare, on 29th December, 2011, pursuant to a purported separation agreement between the defendants dated 22nd December, 2011, is void as a fraudulent conveyance contrary to section 74(3) of the Land and Conveyancing Law Reform Act 2009 (hereinafter “the 2009 Act”).
In order to properly understand the issues that arise between the parties in the two actions, it is necessary to set out the background to the two sets of proceedings, in some detail.
By a Transfer dated 2nd July, 1991, Cornelius Murray, the registered owner of the lands comprised in the three folios, in consideration of natural love and affection for his son, Noel Murray, as beneficial owner of the lands, transferred all the property described in the three folios to Noel Murray in fee simple, subject to and charged with the following rights for Cornelius Murray and for Philomena Murray: the right to be supported and maintained on and out of the said lands in a manner suitable to their ages, health and position in life and the right to be provided with transport whenever reasonably required.
On 11th December, 1991, those rights were registered as burdens on the three folios. It appears that Cornelius Murray died in 1998. As already noted, Philomena Murray died on 30th September, 2016.
The evidence was that Noel Murray had been living abroad. He returned to Ireland in or about the year 2000. It appears that he was primarily working as a farmer, but he also became involved with his brother in a company in which they were both directors. That company was engaged in the business of building houses. The company was known as Ballyonan Developments Ltd.
On 15th June, 2007, Noel Murray executed a guarantee in respect of the indebtedness of the company with Allied Irish Banks plc (hereinafter “the bank”). He also had certain personal borrowings with the bank.
In October 2010, Noel Murray received a number of letters of demand from the bank seeking repayment of various loans and other facilities that he had with the bank. He received three letters dated 12th October, 2010 calling on him to repay various amounts owed by him on foot of an overdraft facility and a loan facility. Another of the letters related to monies owed by the company to the bank on foot of various overdrafts and loan facilities. On 28th October, 2010, the plaintiff received a fourth letter from the bank demanding repayment of the sum of €646,380.07 on foot of the terms of the guarantee that he had given in respect of the indebtedness of the company.
On 25th January, 2011 the bank issued a summary summons against Noel Murray and his brother, John Murray. In that summons the bank sought judgment against Noel Murray in the sum of €1,113,970.72. That summons was served personally on Noel Murray on 7th February, 2011.
On 4th April, 2011, Noel Murray transferred ownership of each of the three folios into the joint names of Noel Murray and Angeline Murray.
In or about June 2011, a proposal was furnished to the bank in respect of the sums that had been claimed against Noel Murray and John Murray in the summary summons. While that proposal was signed by John Murray, it referred to the proposal being made on behalf of both of them, as it referred throughout the document to the proposal being made in the first person plural and it also made extensive reference to assets that were owned solely by Noel Murray. That proposal was undated. However, the proposal was rejected by the bank by letter dated 4th July, 2011.
On 22nd December, 2011, Noel Murray entered into a separation agreement with Angeline Murray. It is appropriate for the court to refer to some of the terms of that agreement, due to the fact that it was referred to in the course of evidence by both Noel Murray and Angeline Murray. The agreement provided that the family home of the parties was situated at St. Senan's, West End, Kilkee, Co. Clare. It was agreed that Angeline Murray and their two daughters would reside in the family home. The agreement provided for joint custody of the two children. It provided that Noel Murray was to pay €30 per week for the maintenance and support of the children. The agreement further provided that Noel Murray...
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