Pasture Properties Ltd v Evans

JurisdictionIreland
JudgeMISS JUSTICE MARY LAFFOY
Judgment Date05 February 1999
Neutral Citation[1999] IEHC 214
Docket NumberNo.9351P 1997
CourtHigh Court
Date05 February 1999

[1999] IEHC 214

THE HIGH COURT

No.9351P 1997
PASTURE PROPERTIES LTD v. EVANS

BETWEEN

PASTURE PROPERTIES LIMITED
Plaintiff

AND

THOMAS WILLIAM EVANS
Defendant

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27

Synopsis

Injunctions

Interlocutory injunction; boundary dispute; alleged trespass; defendant developing land adjacent to plaintiff's property; alleged infringement of plaintiff's right-of-way; wall erected by defendant; alleged encroachment on plaintiff's property in construction of wall; whether fair issue to be tried between plaintiff and defendant as to location of boundary and alleged infringement of plaintiff's right-of-way; whether damages would be adequate remedy; whether plaintiff capable of giving adequate undertaking as to damages; whether balance of convenience favoured refusal of injunctive relief

Held: Relief refused; undertaking as to damages would not be adequate; balance of convenience favoured refusing relief

Pasture Properties Limited v. Evans - High Court: Laffoy J. (ex tempore) - 05/02/1999

The plaintiff company, which has in the past been struck off the Register of Companies before being restored, did not give evidence of any assets beyond vacant lands surrounding apartments developed by it and sold on and therefore an undertaking as to damages by the company was not satisfactory. The High Court so held in refusing the relief sought and further saying that the balance of convenience also favoured refusing the application.

1

TRANSCRIPT OF JUDGMENT DELIVERED EXTEMPORE BY THE HONOURABLE MISS JUSTICE MARY LAFFOYON 5TH FEBRUARY 1999

2

Official Stenographer

3

I want to record some of the history of this matter.

THE CURRENT APPLICATION
4

The current application was first in the Chancery 2 list on 17th December 1998, almost at the end of term. On that occasion the Plaintiff Company (Pasture Properties Limited) was represented by Mr Martin Giblin SC and Mr Alan Toal, instructed by Gerard Murphy and Company, and the Defendant (William Thomas Evans) was represented by Mr John Gordon SC and Mr Justin Dillon, instructed by Martin E. Marren and Company.

5

On that occasion the application, as I understood it, was for an interlocutory injunction. The hearing started and Mr Giblin opened the case. I have checked my notes from 17th December 1998 and my understanding is that what Mr Giblin was seeking on that occasion was an interlocutory injunction, that is to say, an injunction until the plenary hearing of the action, in the following terms:

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(1) A mandatory injunction directing the Defendant to remove a wall allegedly built on the Plaintiff's property.

7

(2) An injunction restraining the Defendant from trespassing on the Plaintiff's property.

8

(3) An injunction restraining the Defendant from preventing the Plaintiff having the access which the Plaintiff says it heretofore enjoyed over the Defendant's property to its own property.

9

Mr Giblin commenced to open the affidavits which had been filed by the parties. In the course of opening the affidavits photographs were produced by the Defendant and put before the Court by consentof Counsel for the Plaintiff.

10

The time available on the 17th ran out and on Friday the 18th, the second last day of term, the matter came on again. As I understand it, what transpired on that occasion was that Mr Giblin had considered the photographs and the photographs suggested that the position was not as had been represented to him. Mr Giblin then indicated that he wanted an adjournment. A very reasonable attitude was adopted on the part of the Defendant. The Defendant wanted the matter dealt with but indicated through his Counsel Mr Gordon that he would consent to an adjournment and suggested that the way to deal with the problem was for the respective surveyors to meet on site and work out on the ground where the boundary was. That seemed to me to be a very sensible suggestion and I voiced that opinion. As the adjournment was being consented to, I accepted to the application and put the matter back to 11th January 1999, the first day of this term, at 2 pm for mention to see whether the matter had been resolved.

11

On 11th January 1999 it transpired that the matter had not been resolved so I put it back for a week. On either the 18th or 19th of January 1999 the Defendant indicated that he wanted a date fixed for the hearing of the application. On the previous occasion, the 18th of December 1998, the Defendant had indicated to the Court that he would not sell the units in his development pending the determination of the matter. It was pointed out to me on either the 18th or 19th of January 1999 that the Defendant was bound by this undertaking, was being prejudiced by it and wanted the matter resolved. On considering my own commitments it appeared to me that the firstoccasion on which I could deal with the case was Thursday the 4th of February. On either the 18th or 19th of January I therefore adjourned the matter until yesterday on the basis that the application would go ahead. The Plaintiff's legal advisers were aware of that and the matter appeared in the legal diary.

12

On the 4th of February there was a case at hearing from the previous day and it was indicated to me that it would probably finish by lunchtime. I indicated that I would take up this application when the other case finished and was told that neither of the Plaintiff's Counsel were available. Mr Giblin was detained in a criminal trial and, of course, those trials have priority, and Mr Toal was indisposed. Mr Murphy, the Plaintiff's solicitor, sought an adjournment and was opposed by the Defendant. It seemed to me that I had no option but to refuse the application for an adjournment and I did so, indicating that the matter would not be taken up before 2 pm. At 2 pm I was free to take the case and at that time I was told by Mr Murphy that, if the matter was going on, the Plaintiff was discharging him and that Mr Carlyle was going to do the case himself. I gave Mr Murphy leave to come off record and gave Mr Carlyle a short time to get his papers together. The matter went on on that basis.

13

In opening the matter to me on behalf of the Plaintiff Company Mr Carlyle outlined the history of the matter and opened the affidavits sworn by himself on the 1st December and sworn by the Defendant on the 9th December. Two further affidavits had been filed by the Defendant, his own affidavit and the affidavit of Mr Linnane. The affidavit of Mr Evans only exhibited the photographs handed in on 18th December 1998 and introduced nothing new. The affidavit ofMr Linnane, I was told by Mr Dillon, had been sworn on 28th January 1999 and served on the same day. It was admitted by Mr Carlyle that his solicitor got the affidavit on 29th January 1999.

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I am of the view that the Plaintiff had plenty of time to respond to the affidavits of 28th January 1999 and I do not think that the Plaintiff is being prejudiced by not being given an opportunity to respond tothem.

THE ORIGINAL APPLICATION
15

The Plenary Summons in this matter was issued on 12th August 1997 and an ex parte application was made on 13th August 1997 when an interim injunction was granted by Flood J. Who ordered that "the Defendant be restrained until 22nd August from developing the property more particularly described as St Mary's Parochial Hall, 28A Church Street, Howth, County Dublin, pursuant to section 27 of the Local Government (Planning and Development) Act 1976". That order put a stop to the Defendant's development.

16

An application for an interlocutory injunction was issued on 15th August 1997 and eventually it came on before Budd J. on 10th September 1997. On that occasion, by consent, the order made on 13th August 1997 by Flood J. Was discharged. In other words, the...

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