Owens and Owens v Duggan and Duggan
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hardiman |
| Judgment Date | 02 April 2004 |
| Neutral Citation | 2004 WJSC-HC 9455 |
| Court | High Court |
| Date | 02 April 2004 |
2004 WJSC-HC 9455
THE HIGH COURT ON CIRCUIT
Between:
and
Citations:
BASHAM, IN RE 1986 1 WLR 1498 1987 1 AER 405
RAMSDEN V DYSON 1866 LR 1 HL 129
TAYLORS FASHIONS LTD V LIVERPOOL VICTORIA TRUSTEE CO LTD 1981 2 WLR 576 1982 QB 133 1981 1 AER 897
MCMAHON V KERRY CO COUNCIL 1981 ILRM 419
HAUGHAN & ORS V RUTLEDGE 1988 IR 295
GILLET V HOLT 2001 CH 211
MCCARRON V MCCARRON UNREP SUPREME 13.2.1997 1997/4/1414
CRABB V ARUN DISTRICT COUNCIL 1975 3 AER 865 1976 CH 179
MCGILLICUDDY V JOY 1959 IR 189
STATE TRADING CO OF INDIA LTD V M GOLODITZ LTD 1989 2 LLOYDS REP 277
VITOL SA V NORELF LTD 1996 3 AER 193
Specific performance - Appeal - Proprietary estoppel - Circuit appeal - Whether the plaintiffs and the defendants reached an agreement in relation to the surrender of a right of way.
In the Circuit Court the plaintiffs were granted a decree of specific performance of an alleged agreement said to have been made between the plaintiffs and the defendants in relation to the surrender of a right of way and the sale of a small sliver of land. The defendants denied the existence of that agreement and consequently appealed against the order of the Circuit Court.
Held by Hardiman J. in dismissing the appeal:
1. That the plaintiffs’ evidence was to be preferred over the evidence of the defendants. The first named defendant deferred the actual completion of the agreement until he had secured his planning permission and having obtained that permission, he simply informed the first named plaintiff that he was not going through with the agreement, in the terms alleged by the plaintiffs.
2. That the plaintiffs had established all the elements required to prove the existence of proprietary estoppel. Furthermore, there was no evidence of acceptance of repudiation of the contract by the plaintiffs.
Reporter: L.O’S.
JUDGMENT of Mr. Justice Hardiman delivered on the 2nd day of April, 2004.
This is the defendants/appellants appeal against the order of the Circuit Court (His Honour Judge McMahon) of the 29 th July, 2003 whereby the plaintiffs were granted a decree of specific performance of an alleged agreement said to have been made in April, 1997 between the plaintiffs and the defendants in relation to the surrender of a right of way and the sale of the small sliver of land at Church Hill, Enniskerry, Co. Wicklow. I heard the appeal over four days three of which were occupied by evidence and the fourth, Tuesday 9 th March, 2004, by legal argument. The case raises complex questions of both fact and law. Certain background matters are however agreed.
For some time prior to 1984 Mr. Duggan had owned the whole of the premises known as Enniskerry Lodge. These were premises in the town of Enniskerry, Co. Wicklow comprising of the old rectory and about 5 acres of land surrounding it. In about 1984 Mr. Duggan sold the house and something over one acre to his sister, a Mrs. Brassington. He retained an area behind the house, also of something over an acre in extent and referred to as "The Arena". This area included the former stables of the rectory, a substantial old building which at one point is only 15 feet from the rectory itself. Mr. Duggan retained a right of way up the drive of the rectory to the land known as the arena. The deed whereby Mrs. Brassington purchased the rectory "excepted and reserved" a right of way from the arena along the drive of Enniskerry Lodge out to the main road at Enniskerry, just opposite the Garda Station. He also retained a small area of land referred to in these proceedings as the "sliver" adjacent to the driveway.
In or about 1990 Mrs. Brassington sold to Mr. and Mrs. Owens. The Duggans were at this stage living in rented accommodation in the neighbourhood. The parties were reasonably friendly and the Owens children and particularly a daughter, attended a riding school run by Mrs. Duggan. The parties had some conversations over the years about the Duggans intention for the plot of land behind the old rectory but nothing concrete came from these discussions.
It is agreed that in April, 1997 Mr. Duggan and Mr. Owens had a meeting at the Golden Ball Public House in Kilternan at 6pm one evening. From this point on, however, the accounts of the parties are fundamentally at variance.
Most of the evidence was given by the respective husbands, Mr. Owens and Mr. Duggan. But both the wives gave significant evidence. As will appear below, architectural evidence was also important.
Mr. Owens said that the parties met from time to time over the years and it was clear at all times that Mr. Duggan intended, if he could, to build a dwellinghouse on the arena. Mr. Owens equally made it clear that he aspired to have exclusive access to his house along the driveway and understood that Mr. Duggan said he would accommodate this desire when he started building. Mr. Owens contacted Mr. Duggan in late 1996 to see what was happening about the plans to build but Mr. Duggan said he was not doing anything in that connection at the time. He made little use of the site or the stable block but some "stuff" was stored in the stables. Mr. Owens said that he arranged the meeting at the Golden Ball in April, 1997. They sat outside the premises and had a drink. Mr. Owens raised his aspirations to exclusive use of the driveway and Mr. Duggan asked him "Would you mind if I built a house behind and lived there?". Mr. Owens said that he would not. Mr. Duggan said "Yes you would". Mr. Owens said that provided he had the right of way the Duggans could have their house. He said that this would be what he called a "win win" situation. He says that they came to an agreement whereby Mr. Duggan would release the right of way and convey the sliver of land to the Owens in consideration of £9,000 and the plaintiffs” agreement not to object to the Duggans planning permission. He said that this was agreed in the middle of the meeting and they shook hands on it. There was then some badinage. Mr. Duggan said "For God sake don't tell Pat". This was a reference to Mrs. Brassington. Mr. Duggan had refused to release the right of way to her when she was selling to the Duggans. A somewhat jocose conversation then developed and one of them said "We'd probably have crashed on the driveway if things were left as they are". The meeting took perhaps half an hour or forty minutes. Mr. Owens said that he was aware that Mr. Duggan had sold a right of way over another entrance (the North entrance) to the arena area to a Mr. Ginty in order to enable him to develop a site, also in consideration of £9,000.
Mr. Duggan said that the only topic discussed at the Golden Ball meeting was the right of way. He said that the meeting had been set up a day or two before by Mr. Owens who had invited him for a "drink and chat". He suspected he was going to be made an offer "for the whole thing" but no actual offer came forward at all. Things were "mooted generally". He said that Mr. Owens asked him to consider selling the right of way for £9,000 but that he had replied "No way — I'd have no access". He said that Mr. Owens had countered this by saying "I won't tell Pat". Mr. Duggan repeated that if he released the right of way he would have no access. It transpired that by this he meant that he would have no vehicular access to the stable block. The North entrance gave him access to the site on which he subsequently built his house but this entrance road did not extend to the stables. He said that when he was adamant in his refusal to release the right of way Mr. Owens asked him to "At least think about it" and that he had agreed to that. He said there was no agreement and they had not shaken hands on any agreement: they had shaken hands on the first meeting only. All he agreed to do was think about it.
Mr. Duggan denied providing any inducement to the Owens” to refrain from objecting to his planning application. He did not think they would have any ground of objection. The house in which they lived was screened from his proposed house by the stable block. Other people were more likely objectors because their view would be interfered with. He did not approach any such people because he believed they had a right to object if they wished.
The entire of the factual issues in the case resolved themselves to whether an agreement was come to as alleged by Mr. Owens or not. An important aspect of the resolution of the direct conflict of evidence about the meeting of April, 1997 is the question of what inferences can be drawn from the parties” subsequent behaviour. This, in turn, gave rise to stark conflicts of evidence on a number of topics.
No note or memorandum was produced in court. Mr. Owens, however, said that a day or two after the meeting in the Golden Ball he went to his then solicitor who advised him to send a note of the agreement which he did, together with a deposit cheque in the sum of £1,000. He said the memorandum referred to both the sliver of land and to the right of way. No copy of this document exists, only some notes which he made which I regard as inconclusive.
Mr. Duggan said that he was going away two days after the Golden Ball meeting. On the morning of his departure he got a letter enclosing what he called a "cheque and home made contract". This document he said was signed by Mr. and Mrs. Owens. He said in cross-examination "I remember thinking “that was quick”". Asked what was quick he said "His sending a letter about the agreement he thought he had come to". He said he had shredded the letter within five minutes of...
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Prunty v Crowley
...contract and that the doctrine of part performance cannot therefore apply. 76 In relation to proprietary estoppel, it is submitted that Owens v. Duggan can be distinguished on the basis that it concerned a purely oral agreement, and that the court did not have to consider the role of estopp......