R (G) v D (J J)

• Jurisdiction: Ireland
• Judge: Mr. Justice Abbott
• Judgment Date: 05 December 2014
• Neutral Citation: [2014] IEHC 665
• Court: High Court
• Date: 05 December 2014

[2014] IEHC 665

THE HIGH COURT

[No. 22 M/2012]

R (G) v D (JJ)

FAMILY LAW

No Redaction Needed

IN THE MATTER OF FAMILY LAW ACT 1995, AND

IN THE MATTER OF THE FAMILY HOME PROTECTION ACT 1976,

BETWEEN

G.R.

APPLICANT

AND

J.J.D.

RESPONDENT

DELANY EQUITY & THE LAW OF TRUSTS IN IRELAND 5ED 2011 168

O'BRIEN v SHEIL 1873 IR 7 EQ 255

STANDING v BOWRING 1885 31 CH D 282 34 WR 204 1881-5 AER REP 702 54 LT 191 2 TLR 202

ROMAINE ESTATE v ROMAINE 205 DLR (4TH) 320

TINKER v TINKER 1970 1 AER 540 1970 2 WLR 331 213 EG 635

LAND AND CONVEYANCING LAW REFORM ACT 2009 S74(3)

REGISTRATION OF TITLE ACT 1964 S31

MULHERN, IN RE 1931 IR 700

ABRAHAMSON & ORS DISCOVERY & DISCLOSURE 2ED 2013 CHAP 4

RSC O31 r.12

MCKENNA v BEST TRAVEL LTD 1995 1 IR 577 1995 2 ILRM 471 1995/10/2847

PARKES v PARKES 1980 ILRM 137 1980/18/3094

GASCOIGNE v GASCOIGNE 1918 1 KB 223 118 LT 347 34 TLR 168

RYANAIR v AER RIANTA 2003 4 IR 264 2004 1 ILRM 241 2003/46/11374

SWORDS v WESTERN PROTEINS LTD 2001 1 IR 324 2001 1 ILRM 481 2000/17/6476

COMPAGNIE FINANCIERE ET COMMERCIALE DU PACIFIQUE v PERUVIAN GUANO CO 1882 11 QBD 55 31 WR 395 48 LT 22

EYKYNS TRUSTS, IN RE 1877 6 CD 115 37 LT 261

W v W 1981 ILRM 202 1981/8/1344

CONSTITUTION ART 41

CONSTITUTION ART 42

DPP, STATE v WALSH 1981 IR 412

W v W 1993 2 IR 476 1993 ITR 473 1992/13/4362

MCKINLEY v MIN FOR DEFENCE 1992 2 IR 333

EUROPEAN CONVENTION ON HUMAN RIGHTS PROTOCOL 7 ART 5

F (R) v F (M) 1995 2 ILRM 572 1985/8/2121

SHELL UK LTD v LOSTOCK GARAGE LTD 1977 1 AER 481 1976 1 WLR 1187

FAMILY HOME PROTECTION ACT 1976 S4(2)

SOMERS v W 1979 IR 94.

D (E) v D (F) UNREP COSTELLO 23.10.1980 1982/11/1883

TAXES CONSOLIDATION ACT 1997 S886

TAXES CONSOLIDATION ACT 1997 S903

Banking & Finance – Conveyance of property – Family Home Protection Act 1976 – O. 31, r. 12 of the Rules of the Superior Courts – Dispensing of consent

Facts: The respondent husband sought an order for discovery of certain bank accounts forming part of loan transactions entered into by the applicant wife with the Bank on the security of the folio that was transferred in the name of the applicant by the respondent. The applicant sought a declaration to dispense with the consent of the respondent for sale of the said folio under the Family Home Protection Act in order to reduce her indebtedness to the Bank.

Mr. Justice Abbott refused to grant an order to the respondent for discovery of relevant documents. The Court held that the test regarding obtaining an order for discovery was clear that it must be essential for the fair disposal of the case, that is, either helping the case of the plaintiff or damaging the case of the defendant. The Court held that the respondent had wilfully transferred the said folio in the name of his wife in order to ensure protection from the creditors and as such his consent could not be dispensed with.

1 JUDGMENT of Mr. Justice Abbott delivered on the 5th day of December, 2014

2 1. This judgment relates to the respondent's motion for discovery of certain bank accounts and documents relating to farm and other transactions. It further seeks discovery of any files relating to the transfer of Folio No., of the County of, (on which the family home is situated), documentation relating to a loan facility with the Bank of Ireland extended to the applicant to include loan proposals, the loan application and any vouching documentation in relation to same, and also the loan facility letter from the bank and any amendments to same.

3 2. The background of the application is as follows. In these proceedings the applicant, who is the registered owner of the said Folio, seeks to sell same and to obtain an order of the court dispensing with the consent of the respondent to sell the family home pursuant to the Family Home Protection Act 1976. The applicant was married to the respondent in 1997 and they have two children. On 18 ^th June, 2003, the respondent executed a transfer of the said folio to the applicant in consideration of his natural love and affection. A "particulars delivered" (PD) stamp on this transfer was dated 23 ^rd June, 2003. The applicant became the registered owner of the said lands comprised in the said folio on 9 ^th June, 2005, and the ownership of the respondent was cancelled on the same date.

4 3. On 7 ^th July, 2003, the respondent made a statutory declaration averring that he was solvent at the date of the said transfer and that the purpose of the transfer was to benefit his wife, the applicant, and not for the purpose of defeating his creditors.

5 4. The applicant obtained a loan from the Bank of Ireland (which apparently is now secured on the said folio) and judgment was obtained by the bank against her on 23 ^rd February, 2011, for the sum of €1,698,001.51 with measured costs of €2,650.00 plus VAT. There was a stay on the order for nine months and the court was informed that interest is running on this judgment debt at a sum in excess of €2,500.00 per week. In order to reduce the applicant's indebtedness to the Bank of Ireland, she must sell the lands comprised in the said folio and, for that purpose, has applied in the above entitled proceedings for an order of this Court to dispense with the consent of the respondent to the sale by the applicant of the family home under the Family Home Protection Act 1976. She further seeks a declaration that she is the beneficial owner of the family home, the respondent having failed to be there to provide the said consent or agree that she is the beneficial owner.

6 5. After some attempts at effecting service of the proceedings on the respondent, which necessitated an order for substituted service upon the respondent, the respondent eventually appeared as a litigant in person. He answered the claim initially submitting that he required an adjournment so that he could inquire if he could negotiate a reduction of the debt with the bank. He acknowledged to this Court that the debt was due to the bank. He stated that he needed a further adjournment at a later date to obtain legal advice and eventually he was represented at a further adjourned date by his first senior counsel who sought a further adjournment and asserted that the application "might not have been as straightforward as it seemed." Counsel for the respondent stated that it would take "a significant amount of time to obtain full instructions in relation to the complex background of the matter." A further adjournment was obtained.

Progress of Case

7 6. The respondent transferred the property into this wife's name "in case anything happened to him or in case his business collapsed". The court was told by his first senior counsel that the respondent had a large vehicle which had a spectacular crash into another large vehicle in England; the like of which could give rise to multiple personal injuries claims. On the basis that he was afraid that he would be sued, he transferred the family home into the name of the applicant wife to protect his assets. In para. 8 of his affidavit sworn on 13 ^th December, 2012, the respondent says:-

"I say that the land was transferred to the applicant to hold for us as a family in case anything went wrong in this deponent's business life."

8 Throughout a number of affidavits the respondent stated that he continued to farm the lands comprised in the folio and that he paid numerous bills, or had third parties pay for them, that he liaised with the accountant dealing with the farm business and that he paid several sums to the bank in respect of the bank debt.

9 7. The matter came on for hearing in relation to the application for discovery and disclosure before this Court on day of, 2014. Written submissions were furnished to the court which had been prepared by counsel for each party. The submissions on behalf of the applicant dealt with the law of advancement between husband and wife as illustrated in Hilary Delaney, Equity and the Law of Trusts in Ireland, 5 ^th Ed., (Dublin, 2011), p. 168 onwards where it is stated that the resulting trust may arise when a donor conveys or transfers property to a donee, but that this presumption may be rebutted by the presumption of advancement in certain cases and, most relevantly in this case, as between the husband and wife, and that this presumption of advancement may be rebutted in evidence. The submissions continued to highlight the manner in which Delaney states that if the transfer intended to benefit the transferee at the date of the transfer, he cannot subsequently change his mind. In O'Brien v. Sheil, (1873) I. R. 7 Eq. 255, O'Sullivan M.R. said:-

"Declarations of the (transferor) subsequent to the advancement, if they are not so connected with it as to be reasonably be regarded as contemporaneous, cannot be evidence to rebut the presumption of advancement."

10 In that case the memorandum found among the father's papers after his death was not admissible in evidence to rebut the presumption of evidence in favour of his daughter in relation to a transfer of securities into their joint names during the father's lifetime. Delaney also dealt with the question of rebutting the presumption of resulting trusts, referring to the case Standing v. Bowring, (1885) 31 Ch. D. 282, p. 164 of her work. She states that the judgment of the Court of Appeal also makes it clear that the relevant time for establishing evidence of intention to make a gift is the time of transfer and once this is shown, a donor cannot subsequently change his mind and withdraw this intention. A good illustration of this principle is provided by the decision of the British Columbia Court of Appeal in Romaine Estate v. Romaine (2001), 205 D.L.R. (4 ^th) 320, in which an uncle transferred property to his nephew before his death in order to save taxes, however; he subsequently regretted his...