Nolan v Dildar Ltd
| Jurisdiction | Ireland |
| Judge | MR. JUSTICE MICHAEL PEART |
| Judgment Date | 31 October 2018 |
| Neutral Citation | [2018] IECA 345 |
| Date | 31 October 2018 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Neutral Citation Number: [2018] IECA 345 Record Number: 2018/19 |
[2018] IECA 345
THE COURT OF APPEAL
Peart J.
Peart J.
Whelan J.
Baker J.
Neutral Citation Number: [2018] IECA 345
Record Number: 2018/19
AND
AND
AND
Practice & procedure – Defendants – Application to join – Ord 15, r 13 Rules of the Superior Court
Facts: The plaintiffs asserted that they were the beneficiary owners of land in Cork, registered in the name of Dildar Limited. The applicants submitted they were the beneficial owners of Dildar and applied to join the litigation as defendants under Ord 15, r 13 of the Rules of the Superior Courts. The High Court had refused them permission, and they now appealed.
Held by the Court, that the appeal would be allowed. The Court disagreed with the finding of the High Court that the proceedings were moot and that joining the applicants would give them an unfair procedural advantage.
This is an appeal brought by Dillon Kenny and Darren Kenny from an order of the High Court (McGovern J.) made on the 18th December 2017 refusing their application to be joined as defendants to the within proceedings pursuant to Ord. 15, r. 13 of the Rules of the Superior courts (‘RSC’).
As appears from the ex tempore judgment of the trial judge, their application was refused because the trial judge considered that he would be giving them ‘a procedural advantage’ if they were added as defendants because as defendants they would not be assuming any burden of proof. He went on to note however that the appellants would not be unduly prejudiced by his refusal of their application because it would be open to them to commence their own proceedings against the present plaintiffs, where the issues that concern them could be ventilated, and in the event that such proceedings were commenced, those proceedings could be admitted to the Commercial Court and consolidated with the present proceedings, so that all issues could be addressed at the same trial.
As it happens, these appellants have by now issued their own proceedings in which the plaintiffs in the present proceedings are named as defendants (Record No: 2018/2009P). That occurrence has led them to submit that the present appeal is therefore moot. I will come to that question in due course.
The present proceedings concern a claim by the plaintiffs (‘the Nolans’) that they are the beneficial owners of certain lands in Cork which I shall for convenience refer to simply as ‘the Nemo lands’. These lands are registered in the name of Dildar Limited, which is a company registered in the Isle of Man. It was incorporated for the purpose of acquiring the Nemo lands. The central issue is whose money was used for the purchase of the lands through Dildar Limited.
The plaintiffs claim to be the beneficial owners of the lands because, they say, their pension fund monies held by Oaklands Property Trust were used for the purchase of the lands by Dildar Limited. Their statement of claim describes the rather elaborate financial structures put in place by their advisers for the investment of their pension funds, and certain financial transactions that occurred prior to the completion of the purchase, which they say establishes that their pension fund provided the finance for the purchase of the Nemo lands. They make many claims against their advisers in these proceedings which are not relevant to the present appeal, and I need not elaborate upon. But ultimately it was Dildar Limited which purchased the Nemo lands. In their statement of claim the Nolans seek, inter alia, a declaration that Dildar Limited holds its interest in the lands on a trust for them.
In the defence delivered on behalf of the 5th, 6th and 8th defendants it is denied that the Nolans are the beneficial owners of Dildar Limited. That question is clearly an issue to be decided in the proceedings, and the Nolans, as plaintiffs, will bear the onus of proof if they are to achieve the declaratory relief they seek.
What has given rise to the application by the appellants to be joined in the proceedings is that they claim to be the beneficial owners of Dildar Limited. They wish to be able to defend the plaintiffs” claim to be declared the beneficial owners, and to assert their own claim in that regard, in the unusual circumstances described below.
The appellants seek to be joined as defendants because the administrator of Dildar Limited in the Isle of Man has made it known that he will be taking a neutral position in the proceedings in relation to the ownership question (the company itself having previously supported the claim of beneficial ownership made by the Kennys). The Kennys anticipate therefore that the Nolans will be facing what they describe as ‘an open goal’ when making their claim for a declaration that they are the beneficial owners of Dildar Limited, as there will be no party before the court to make the case that they are not. They consider that they are now the only appropriate “legitimi contradictores”, and ought to be joined so that they can defend the plaintiffs” claim to a declaration, and also seek their own declaration as to ownership by way of a counterclaim.
This change of position on the part of the administrator of Dildar Limited is put forward by the appellants as an exceptional circumstance justifying their being joined as defendants so that (a) they can defend the plaintiffs” claim to beneficial ownership, and (b) so that they can assert by way of counterclaim their own claim to beneficial ownership. The appellants contend that their joinder will ensure that the necessary parties are before the court so that all necessary issues can be properly and fairly determined by the court. They submit that their interests are directly affected by the determination of the plaintiff's claim to ownership, and that they must be allowed to defend their interests, now that the administrator of Dildar Limited has indicated that he will be adopting a neutral position in the matter.
In their application to be joined as defendants Darren and Dillon Kenny claim that the funds used by Dildar Limited to purchase the Nemo lands came from Kenny family funds, and that it was they who procured the incorporation of Dildar Limited for the purchase of the lands. They refer to the fact that even the name of the company consists of the first three letters of the first names of Dillon and Darren Kenny.
I should mention also that in November 2017 the plaintiffs herein have commenced other proceedings in the Isle of Man for the purpose of determining the ownership issue. However, the appellants consider that the Irish courts are the appropriate forum to that question to be decided.
This summary of the background and the relevant issue for the purposes of this appeal is necessarily somewhat truncated, but I believe it suffices to provide a context within which the appellants” application for joinder, and this appeal, may be considered, though I will refer later to certain passages from the grounding affidavit and replying affidavit filed.
Leaving aside for the moment the respondents” submission as to mootness, the parties do not disagree as to the applicable legal principles to be applied by a court considering the joinder of non-parties as defendants to proceedings. The starting point is Ord. 15, r. 13 RSC which provides, as relevant:
‘13. … The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the names of any parties improperly joined, whether as plaintiffs or as defendants, be struck out and that the names of any parties, whether...
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Nolan and Others v Dildar Ltd and Others
...to these proceedings. Their case was succinctly summarised by Peart J. in the judgment of the Court of Appeal in Nolan v. Dildar Limited [2018] IECA 345 at paras. 8 – 10 as follows:- “8. The appellants seek to be joined as defendants because the administrator of Dildar Limited in the Isle o......