Roberts v Roberts and Another

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Brian O'Moore
• Judgment Date: 22 July 2024
• Neutral Citation: [2024] IECA 193
• Docket Number: Record Number: 2024/18

Between/

Robert Alan Roberts

Appellant

and

David Ian Roberts & Janice Roberts

RespondentS

[2024] IECA 193

Binchy J.

Pilkington J.

O'Moore J.

Record Number: 2024/18

High Court Record Number: 2022 No. 16 SP

THE COURT OF APPEAL

Well charging order – Judgment mortgage – Cross examination – Respondents appealing against a well charging order – Whether the first respondent had an interest in the property

Facts: The appellant, Mr R Roberts, and the first respondent, Mr D Roberts, were brothers. Their father’s will failed to make a bequest of the property in which he lived at the time of his death. The proceeds of the sale of the property should have been divided equally between the brothers. The appellant complained that the first respondent sold the property to third parties and then kept the net proceeds. The appellant issued proceedings in the High Court of England and Wales. The appellant obtained an order debarring the first respondent from further defending the claim, a declaration that the appellant was entitled to one-half of the net proceeds of sale of the property, a direction that the first respondent serve an account of the sums realised from the sale of the property and disclosing all documentation relevant to the calculation of the sale proceeds. In the event that the account was not provided or the relevant documentation not disclosed, the appellant was awarded judgment against the first respondent in the sum of Stg £35,000 together with interest at 8% from the 26th of January 2007 (the date when the property was sold) to the 19th of February 2010. In accordance with that order, the appellant maintained, he obtained judgment against the first respondent on the 5th of March 2010 in the amount of Stg £43.591.78. On foot of that judgment, the appellant registered a judgment mortgage over the interest of the first respondent in property in Wexford. The appellant sought to have that amount (together with continuing interest) well charged on the same property in Ireland. As the second respondent, Mrs Roberts (the first respondent’s wife), was the registered owner of the Irish property she had also been joined to the well charging action. The High Court made the well charging order sought by the appellant. In the notice of appeal, the respondents sought orders quashing the well charging order made by the High Court, as well as the judgment mortgage of the 13th of June 2016 registered in favour of the appellant.

Held by the Court of Appeal (O’Moore J) that the second of those reliefs was not available to the respondents, as the Court had not been brought to any formal or properly constituted application for such an order. O’Moore J found that, as was effectively accepted by the appellant’s counsel at the appeal hearing, the affidavit evidence of the second respondent was not fully considered in the judgment. In O’Moore J’s view, the testimony given on affidavit by the second respondent could not be rejected without cross examination. In addition, O’Moore J found that relevant documents supporting the position of the respondents did not appear to have been taken into account by the trial judge. For those reasons, O’Moore J held that the appeal would be allowed and the well charging order (and the associated costs order) would be set aside.

O’Moore J noted that the notice of appeal did not seek an order striking out the special summons proceedings. Therefore, O’Moore J proposed that the appeal be allowed, the order of the High Court be set aside, and the matter be remitted to the High Court for plenary hearing.

Appeal allowed.

JUDGMENT of Mr. Justice Brian O'Moore delivered on the 22nd of July, 2024

1 . This is an appeal against a well charging order made by the High Court (Nolan J) on the 12th of December 2023. These proceedings have their origins in a dispute between two brothers, Robert Roberts and David Roberts. Their father, Thomas, died on the 10th of August 2006. His will, dated the 14th of July 2006, failed to make a bequest of the property in which Thomas lived at the time of his death. That property was 87 Bold Street, Leigh, Lancashire, England (“the Property”). Because of this failure in the will, the Property (or, more precisely, the proceeds of the sale of the Property) should have been divided equally between David and Robert. Robert complains, however, that David sold the Property to third parties for Stg £70,000 and then kept the net proceeds. On foot of this complaint, Robert issued proceedings in the High Court of England and Wales claiming;

1. An account of the sums received by the sale of [the Property]

2. Payment to [Robert] of one-half of the net proceeds of the said sale.

3. An Order for the Administration of the estate of Thomas Roberts deceased with all necessary and proper accounts, directions and enquiries.

Other adjectival reliefs were also sought.

2 . On the 28th of January 2010 Robert obtained an order in the English proceedings debarring David from further defending the claim, a Declaration that Robert was entitled to one-half of the net proceeds of sale of the Property, a direction that David serve an account of the sums realised from the sale of the Property and disclosing all documentation relevant to the calculation of the sale proceeds. In the event that the account was not provided or the relevant documentation not disclosed, Robert was awarded judgment against David in the sum of Stg £35,000 together with interest at 8% from the 26th of January 2007 (the date when the Property was sold) to the 19th of February 2010. In accordance with this order, Robert maintains, he obtained judgment against David on the 5th of March 2010 in the amount of Stg £ 43.591.78.

3 . On foot of this judgment, Robert registered a judgment mortgage over the interest of David in property in Wexford. Robert now seeks in the current proceedings to have this amount (together with continuing interest) well charged on the same property in Ireland. As David's wife, Janice, is the registered owner of the Irish Property she has also been joined to this well charging action. Two immediate and quite basic issues arise in such an application. Firstly, does David have any interest in the Irish property? Secondly, is the English judgment enforceable in Ireland by means of a European Enforcement Order for Uncontested Claims Certificate, issued on the 12th of May 2010.

1. Does David Roberts have an interest in the Irish property?

4 . The High Court made the well charging order sought by Robert. In doing so, the trial judge decided that David had an interest in the Irish property. A summary of his conclusions is helpfully to be found at page 6 of the transcript of page 6 of his ex tempore judgment;

“I'm also satisfied of the funds to purchase the property in Wexford. They were put into the Goodman account by the sale of the property of the late Mr. Roberts, in the sum of £ 64,516.46, and the sale of the house jointly owned by Mr. and Mrs. Roberts in the sum of £ 316,376. Those monies were then mixed with perhaps other monies. But it is not at all clear to me that there were in fact any other monies. They were put into the Goodman account for reasons which have not been explained…However, I am satisfied that monies from that account were then used building the first and second defendant to purchase the property in Wexford. I do not accept that [David] in some way assigned the monies to his wife to pay for the failure of [Robert] to purchase shares. That seems to me to be a far-fetched notion.

“Therefore I am satisfied that monies of [David] found their way into the joint account and then found their way to the Goodman account, which then purchased the family home in which the defendants live.”

5 . The...