Oakes v Lynch & White

• Jurisdiction: Ireland
• Judge: LAVERY J.,Maguire J.
• Judgment Date: 21 December 1954
• Neutral Citation: 1930 WJSC-SC 841
• Docket Number: 36/1953
• Court: Supreme Court
• Date: 21 December 1954

1930 WJSC-SC 841

Supreme Court

36/1953

Oakes v. Lynch & White

JOHN P.R. OAKES

Plaintiff and

Respondent,

-v-

HENRY LYNCH and KEVIN T. WHITE

Defendants and

Appellants.

Maguire J.

21.12.54

1 This is an appeal by the defendant Kevin T. White from a judgment and order of the President of the High Court Dated the 14th May 1953 for the sum of £2,605 with costs damages for conspiracy and fraud against both defendants. Both defendants appealed against said order and judgment. The defendant Henry Lynch failed to comply with an order of this Court requiring him to give security for the costs of the appeal. The defendant Henry Lynch has left Ireland and taken up residence in New Zealand. A motion by the plaintiff that the appeal of the defendant Lynch do stand dismissed for failure to comply with said order requiring him to give security for costs has been adjourned to give him a further opportunity of complying with said order. The appeal of the defendant Kevin T. White was opened on the 8th October 1954 and was fully argued in this Court.

2 The plaintiff is an Englishman and a member of the English Bar. He came to Dublin in 1951. He brought with him a considerable amount of capital which he desired to invest productively in Ireland. He now resides at Kilternan Co. Dublin. The defendant Henry T. Lynch practised as a Solicitor at 1 clare Street Dublin under the name or style of Farrell & Lynch. The defendant Kevin T. White is a legal costs-drawer and accountant carrying on business at 2 Inns Quay, Dublin. He has been for some years also engaged in the business of land development. In May 1951 the plaintiff was introduced to Lynch by a German named Muller then resident in Dublin. They met on a few occasions. At the Laragh Hotel on Monday, the 13th May 1951 Lynch told the plaintiff about a prospective building site of approximately 10 acres of land at Rosemount near Dundrum Co. Dublin, the property of a family named Coard. Lynch said to the plaintiff it was an extremely good proposition and it adjoined a site he was already developing. He described it pretty fully. The plaintiff was much interested. It seemed to him a very good proposition. The plaintiff enquired if Lynch said "No". Plaintiff said "Well what would you get out of it." Lynch said "Nothing". Plaintiff said I suppose you would want the conveyancing wouldn't you? Lynch said "Yes." Plaintiff then said "Well if that is the case you can act for me." The following Wednesday Lynch called for the plaintiff and they drove together to the lands. Lynch showed plaintiff the 3 fields fenced and enclosed which constituted the holding of Rosemount. He said it was 10 1/2 acres or there abouts and the ordinary rate of development was six and a half houses to the acre. The plaintiff became particularly interested in the purchase of the lands and subsequently instructed Lynch to purchase the lands for a sum of £5,000. Thus began the long chain of events set out in the judgment of the President of the High Court. I am satisfied that the summary of events in the judgment of the President is comprehensive, adequate and fair. I adopt it completely. I think no useful purpose would be served by repeating these events again.

3 While adopting the President's summary of events it is necessary to refer to the position of White. White was a friend and client of Lynch. They were closely associated in the development of the adjoining lands of Roebuck. Lynch was also Solicitor for White and Robbins the Company which took over that development. Prior to May 1951 White was in contact with a member of the Coard family. He had a preliminary survey made of Rosemount in March 1950. He commenced negotiations with Albert Coard in February 1950. He acquired for a sum of £5. on the 28th June 1951 an option from Mary Elizabeth Coard to purchase the lands, less the residence and a substantial portion, a strip of 120 ft., on the Western boundary adjoining the residence, for a sum of £5,500, - the option to be exercised by notice in writing on or before the 31st August 1951. On the 31st August 1951Messrs Farrell and Lynch by letter of that date on behalf of White notified Mr. Curran Solicitor for Miss Coard of their client White's intention to take up this option. The sum of £1375 required as deposit on taking up the option was provided by two cheques to Mr. Curran one for £40 from White to Curran dated 8th September 1951 and one for £1335 from Lynch to Curran dated 7th September 1951. On the 10th September 1951 Lynch obtained from the plaintiff a cheque for £1380 which re-imbursed the two cheques just mentioned, and covered also the sum of £5. paid by White on the 28th June for the option. Prior to the exercise of this option Lynch obtained from the plaintiff definite instructions to purchase for him the lands from the Coards at £8,000. No agreement to purchase was ever entered into between the plaintiff and the Coards or between the plaintiff and White. The sale from the Coards to the plaintiff's nominees Sterling Metal Products Limited was closed on the 21st December 1951 at the office of White by a cheque of that date for £5689:10:3 from the plaintiff to Lynch and a cheque from Lynch to Curran for £3835. The two cheques from the plaintiff dated 10th September 1951 and 21st December 1951make a total of £8069. On the 22nd December 1951 Lynch gave White a cheque for £2540 which was lodged by White in his bank and the proceeds retained by him. On the 21st December 1951 White executed an assignment of the option to the plaintiff. On the same date Mr. Curran handed to Lynch the Conveyance of the lands executed by the members of the Coard family. The evidence of the plaintiff was that he had never met White, that he was unaware of his interest or even of his existence, that he believed, and was led by Lynch to understand he was dealing direct with the Coards and that he had never been told about White by Lynch. The plaintiff's evidence was that it was only on the 31st December 1951 when he got the deeds from Lynch that he learnt of White's position in reference to the option, and the £2,500 and the true position as to the purchase money paid to the Coards. His reaction was immediate. It was the reaction of a man who had been deceived and kept in ignorance of the facts. He made that clear right away.

4 The President after a long and patient hearing of the action came to the conclusion that the fraud, and fraudulent conspiracy alleged in the statement of claim were established to his satisfaction against both defendants. He assessed damages against the defendants in favour of the plaintiff in the sum of £2505. being the sum of £2500 loss sustained in the purchase of the lands of Rosemount and £105 Architects's fees incurred by the plaintiff for development plans and services wholly lost to the plaintiff. The appeal in so far as it relates to damages is not pressed by Mr. McBride. The findings of the President on the main issues in the action are strongly challenged. The appellant White contends that they are unsustainable and should be set aside.

5 In their defences, and in their evidence at the trial both defendants deny the conspiracy and fraud alleged in the Statement of Claim. Save as to the admission of certain documents and facts they traverse the various facts alleged in support of the plaintiffs allegations of fraud and conspiracy. Their evidence at the trial was in support of these defences which are now raised as matters of appeal.

6 Case is also made that the plaintiff suffered no damage. On the appeal theappellant White contends that he was unaware of, and an innocent party in reference to the fiduciary position of Lynch to the Plaintiff, and not affected by this relationship.He further submits that the true inference from the established facts is that Lynch was inexperienced and negligent and that the facts can be explained in that light without any liability or responsibility on the part of White.

7 At the trial, while certain of the facts and documents were admitted there was direct and irreconcilable controversy between the evidence of the plaintiff and his witnesses and that of the defendants. Such controversy is not to be unexpected where grave issues of fraud and conspiracy are involved. The President had the benefit of seeing and hearing the parties and their witnesses and observing their demeanour and reaction when confronted with certain documents and facts, and in their narration of the events which make up the history of this case. The President accepted the evidence of the plaintiff. He says quite clearly that he accepts the evidence of the plaintiff where it is in conflict with the evidence of Lynch or the defendants witnesses. He does not accept the testimony of Lynchor White where it is at variancewith the plaintiff's testimony. He sets out clearly at each stage his reasons for this.

8 In a long and carefully reasoned judgment the President analyses and reviews fully the evidence in the case. He focuses his attention on the salient features of the case which enable him to arrive at his conclusions. His judgment has been criticised, properly and within their rights, by Counsel for the appellant. Nowhere, or at any stage, have I found this criticism justified or sustainable. The President was well aware of the onus of proof, necessarily a strong onus, in charges of fraud and conspiracy. He was satisfied that burden had to be discharged, and that it was discharged. There was a definite preponderance of evidence on the facts in support of his findings. The inferences he drew were the only rational inferences open to him. In my opinion these inferences were unavoidable and inescapable. I agree completely with the findings offact and with the inferences drawn by the President.

9 Mr. McBride urges that this Court ought to consider the evidence and decide for itself the facts and more especially the inferences which should...