Rayan Restaurant Ltd and Others v Murphy-Flynn and Others

JurisdictionIreland
JudgeMr Justice Finnegan
Judgment Date27 March 2009
Neutral Citation[2009] IESC 28
CourtSupreme Court
Date27 March 2009

[2009] IESC 28

THE SUPREME COURT

Kearns J.

Macken J.

Finnegan J.

APPEAL NO. 433/434/2006
Rayan Restaurant Ltd & Ors v Murphy-Flynn & Ors

BETWEEN

RAYAN RESTAURANT LIMITED, DJAMEL MENNAD AND FATIMA ZOHRA-AZIZI
PLAINTIFFS/APPELLANTS

and

CATHERINE MURPHY-FLYNN AND BY ORDER JOSEPH RALPH SWEENEY AND P.J. DWYER
DEFENDANTS/RESPONDENTS

HENDERSON v HENDERSON 1843 3 HARE 100

CARROLL v RYAN & ROGERS & LAW SOCIETY OF IRELAND 2003 1 IR 309 2003 2 ILRM 1 2003/8/1753

FOSS v HARBOTTLE 1843 2 HARE 461

ROBINSON v CHARTERED BANK 1865-66 1 LR EQ 32

O'NEILL v RYAN 1993 ILRM 557 1993/5/1227

Abstract:

Practice and procedure - Res judicata - Abuse of process - Whether claim involving issues determined in prior Circuit Court proceedings - Whether claim should be dismissed as abuse of process.

Facts: the first plaintiff was a company owned and directed by the other plaintiffs. The first plaintiff had been assigned the lessor's interest in respect of premises leased by the defendants in which it ran a restaurant. The defendants had taken possession of the premises for non-payment of rent and excluded the plaintiffs therefrom. The first plaintiff brought proceedings in the Circuit Court seeking an injunction to put it back into possession of the premises and damages. That claim was dismissed. Thereafter, the plaintiffs instituted High Court proceedings, the principal purpose of which was to re-litigate the claim made by the first plaintiff in the Circuit Court but they also sought the return of moveable chattels which they alleged had been wrongfully retained by the defendants when they took possession of the premises. Those proceedings were struck out by the High Court on the basis that the issues raised were res judicata having regard to the order made in the Circuit Court. The plaintiffs appealed to the Supreme Court.

Held by the Supreme Court (Finnegan J; Kearns and Macken JJ concurring) in giving the plaintiffs liberty to deliver an amended statement of claim that the issue of the determination of the lease was res judicata and, as the first plaintiff acted through the other plaintiffs, they could not maintain a claim to the lessee's interest under the lease in conflict with the claim maintained in the Circuit Court that the first plaintiff was entitled to the lease and to seek to do so was an abuse of process. Had they wished to maintain a personal claim to the lessee's interest it was appropriate to do so in the Circuit Court proceedings. Insofar as the first plaintiff made a claim in respect of the contents of the restaurant, that claim was so closely related to the issue in the Circuit Court proceedings that it could and should have been raised in those proceedings and it was an abuse of process by the first plaintiff to refrain from making that claim in those proceedings and to seek to maintain that claim in the High Court proceedings. However, the other plaintiffs were entitled to maintain a personal claim in respect of the contents of the premises as no issue of res judicata or abuse of process arose in relation to that claim.

Reporter: P.C.

1

Judgment of Mr Justice Finnegan delivered on the 27th day of March 2009

2

Judgment delivered by Finnegan J. [nem diss]

3

This is an appeal from an order of the High Court (Quirke J.) made on the 12 th October 2006. There is no copy of the order before the court. However from the approved note of the hearing the appellants' claim against the first named respondent was dismissed on the ground that the issue of re-entry for non-payment of rent and determination of the first named appellant's lease had already been determined in earlier Circuit Court proceedings. The appellants' claim against the second and third named respondents was struck out on the grounds that it was bound to fail as the issue of the legality of the re-entry for non-payment of rent and determination of the lease had already been decided in the Circuit Court proceedings and that decision was binding on the appellants.

4

For ease of reference and for consistency when referring to the Circuit Court proceedings and the proceedings in the High Court the subject matter of the appeal I propose referring to the capacity of the parties in each of those proceedings and hereafter refer to them in the matter hereinafter indicated. In relation to the High Court proceedings:

5

Rayan Restaurant Limited (hereinafter "the company"). The company at all material times was the lessee of premises held under the lease hereinafter mentioned.

6

Djamel Mennad (hereinafter "D.M.") and Fatima Zohra-Azizi (hereinafter "F.Z.A.") (hereinafter together "the proprietors") are entitled to the entire issue shared capital in the company and are the directors of the company.

7

Catherine Murphy-Flynn (hereinafter "C.M.F.") is the widow of Barra Flynn (hereinafter "B.F.") now deceased. B.F. at the date of his death was entitled to the lessor's interest in the lease. He personally affected the re-entry. He died prior to the hearing of the Circuit Court action and C.M.F. was substituted for him as defendant to represent his estate. Under the terms of the will of B.F. deceased she became entitled to the lessor's interest in the lease.

8

Joseph Ralph Sweeney and P.J. Dwyer (hereinafter together "the executors") are the executors of the last will and testament of B.F. deceased probate thereof having been granted to them on the 26 th April 2005.

9

By lease dated the 20 th day of December 1996 and made between B.F. of the one part and C.M.F. of the other part (hereinafter "the lease") premises situate at High Street, Athlone, Co. Westmeath (hereinafter "the premises") were demised unto C.M.F. for a term of thirty five years from the 1 st January 1997 subject to the yearly rents thereby reserved and the covenants on the part of the lessee and conditions therein contained. The lease contains a proviso for re-entry should the rent or any part thereof be unpaid for twenty one days after becoming payable. The company became entitled to the lessee's interest under the lease by assignment dated the 1 st day of August 2002. At all relevant times the rent payable under the lease was €45,000 per annum payable quarterly in advance. As a condition of consent to the assignment of the lease the company paid a deposit of one quarter's rent to B.F.

10

The parties to the Circuit Court action were the company plaintiff and Julia's Company Restaurant Limited, Claudia Pascau and B.F. defendants and D.M. third party. Following the death of B.F. on consent C.M.F. was substituted as a defendant to represent his estate. The issues between the company and the first and second defendants and the third party issue between the second defendant and D.M. are of no concern to this appeal the concern being confined to the issues between the company and B.F.

The Circuit Court Proceedings
11

The premises were formerly an antique shop. At the time that the company obtained an assignment of the lease the premises required considerable works to make them suitable for use as a restaurant. These works were carried out by and at the expense of the company or alternatively by and at the expense of the proprietors and it is claimed cost approximately €150,000. Rent amounting to €36,000 was paid while the works were being carried out. A gale of rent fell due on the 1 st July 2003. On the 24 th July 2003 in reliance on the proviso for...

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