National Irish Bank Ltd v Graham (No. 2)

• Jurisdiction: Ireland
• Judgment Date: 01 January 1995
• Date: 01 January 1995
• Docket Number: [S.C. Nos. 60-61 of 1994]
• Court: Supreme Court

Supreme Court

[S.C. Nos. 60-61 of 1994]

National Irish Bank Ltd. v. Graham

The National Irish Bank Limited

Plaintiff

and

Robert Graham senior, Sarah Graham, Eric Samuel Graham, Charis Graham and Robert George Graham, Defendants, Ingrid Graham, Notice Party

Cases mentioned in this report:—

Bank of Ireland v. Purcell [1989] I.R. 327; [1990] I.L.R.M. 106.

Head v. Head [1963] 3 W.L.R. 326; [1963] 3 All E.R. 640; [1963] P. 357.

L. v. L. [1989] I.L.R.M. 528.

Luke v. Inland Revenue Commissioners [1963] 2 W.L.R. 559; [1963] 1 All E.R. 655; [1963] A.C. 557; 107 Sol. Jo. 174; [1963] T.R. 21; 42 A.T.C. 21.

Middleton v. Bull [1951] W.N. 517; [1951] 2 T.L.R. 1010; 95 Sol. Jo. 727.

Nestor v. Murphy [1979] I.R. 326.

Somers v. W. [1979] I.R. 94.

Walpoles (Ireland) Ltd. v. Jay (Unreported, High Court, McWilliam J., 20th November, 1980).

Warner v. Moir (1884) 25 Ch. D. 605; 53 L.J. Ch. 474; 50 L.T. 10; 32 W.R. 377.

Family law - "Family home" - Whether spouses must be or have been resident in the dwelling before it can constitute a family home - Family Home Protection Act, 1976 (No. 27), s. 2, sub-s. 1.

Sale of land - Family home - Execution of mortgage deed by purchasers prior to taking possession - Purchase of equity of redemption by joint conveyancing of property and mortgage - Whether spouses must be resident in the dwelling before it can constitute a family home - Meaning of "family home" - Family Home Protection Act, 1976 (No. 27), s. 2, sub-s. 1.

Words and phrases - "Family home" - Family Home Protection Act, 1976 (No. 27), s. 2, sub-s. 1.

Practice and procedure - Summary judgment - Whether summary judgment was appropriate where there were inconsistencies in an affidavit although they were subsequently corrected -Rules of the Superior Courts, 1986 (S.I. No. 15), O. 38, r. 8.

Appeal from the High Court.

The facts have been summarised in the headnote and fully set out in the judgment of Finlay C.J., infra.

The plaintiff issued proceedings as mortgagee seeking possession of certain lands and hereditaments owned by the defendants. The High Court (Costello J.) made an order in favour of the plaintiff on the 8th November, 1993. The defendants and notice party appealed by notices of appeal dated the 23rd February, 1994, and the 8th March, 1994, on the ground that the trial judge had erred in law and in fact in that the defendants were not conveying any interest in a family home when the deed of mortgage was executed on the 9th August, 1989.

The appeals were heard by the Supreme Court (Finlay C.J., Egan and Blayney JJ.) on the 26th April, 1994.

Section 2, sub-s. 1 of the Family Home Protection Act, 1976, provides:—

"In this Act 'family home' means, primarily, a dwelling in which a married couple ordinarily reside. The expression comprises, in addition, a dwelling in which a spouse whose protection is in issue ordinarily resides or, if that spouse has left the other spouse, ordinarily resided before so leaving".

Section 3, sub-s. 1 of the Act of 1976 provides:—

"Where a spouse, without the prior consent in writing of the other spouse, purports to convey any interest in the family home to any person except the other spouse, then, subject to sub-sections (2) and (3) and section 4, the purported conveyance shall be void".

Order 38, r. 8 of the Rules of the Superior Courts, provides inter alia:—

"If at any stage during the course of proceedings instituted by special summons it shall appear to the Court that the determination of some question or questions of fact is necessary for the proper decision or ruling as to the relief to be granted in such proceedings or as to any matter arising therein, the Court may determine each question or questions of fact either by directing the trial of issues in regard thereto or in such other manner (whether summary or otherwise) as may seem convenient for doing justice between the parties . . ."

On the 9th August, 1989, certain of the defendants purchased lands and hereditaments over which the first, second, third and fifth defendants then executed a mortgage conveying...