S.D v M.L
| Jurisdiction | Ireland |
| Judge | Mr. Justice Michael White |
| Judgment Date | 30 July 2012 |
| Neutral Citation | [2012] IEHC 583 |
| Docket Number | [No. 2624 P./2009] |
| Court | High Court |
| Date | 30 July 2012 |
[2012] IEHC 583
THE HIGH COURT
BETWEEN
AND
R (J) (A WARD OF COURT), IN RE 1993 ILRM 657 1993/5/1350
COURTNEY v MCCARTHY 2008 2 IR 376 2007/11/2296 2007 IESC 58
AMALGAMATED INVESTMENT & PROPERTY CO LTD (IN LIQUIDATION) v TEXAS COMMERCE INTERNATIONAL BANK LTD 1982 QB 84 1981 3 WLR 565 1981 3 AER 577
Family law – Property Law – Maintenance – Conversion and detinue –Proprietary and Promissory Estoppel – Resulting trust – Whether property had been gifted to applicant – Guardian of Infants Act, 1964 – Family Law Maintenance of Spouses and Children Act, 1976 – Family Law Act, 1995.
Facts The applicant and respondent had been in a relationship and had a child together. A dispute arose as to the ownership of certain property and the applicant sought a declaration that she was the owner of the property in question. The applicant also sought maintenance and lump sum payments in respect of their son. It was the contention of the applicant that the respondent had agreed to purchase a property for her to ensure her financial security. The respondent contended that the property was purchased in order to benefit their child and that the applicant would be able to reside in the dwelling.
Held by White J in making the following orders: The acquisition of the property was inextricably linked with the provision of security for the child with acceptance that the applicant would have the right to reside there and that the respondent would discharge the costs associated with the mortgage and general upkeep of the dwelling house. The applicant could not be said to have acted to her detriment on the faith of a belief that the property would be transferred to her. Proprietary estoppel did not arise and neither did promissory estoppel. The applicant had a right of residence until the child reached 18. The court would make a number or orders which would put a more formal structure on the maintenance payments being made.
1. The applicant by Plenary Summons of the 20th March, 2009 has issued proceedings seeking a declaration that she is the owner of certain property in South West Ireland (hereinafter called "the property") She also seeks damages for the conversion and detinue of a BMW motor car.
2. The applicant also issued a special summons on the 1st April, 2009 pursuant to the provisions of the Guardianship of Infants Act 1964, the Family Law Maintenance of Spouses and Children Act 1976 and the Family Law Act 1995 seeking maintenance and lump sum payments in respect of their son C.
3. By order of the High Court of the 12th July, 2010, the proceedings were consolidated. The proceedings were heard by the High Court Family Court on the 6th, 7th, 8th, 26th and 29th March, 2012. Written submissions were received on the 1st May and judgment was reserved.
4. By order of the High Court of 18th July, 2008, in previous proceedings M.L., applicant and S.D., respondent Record No. 2007/70M it was ordered as follows:-
(1) That the applicant be appointed as a guardian to the infant C.L.
(2) That the applicant and respondent have joint custody.
(3) That the infant continue to reside with the respondent at her present address and in the event of the respondent moving from her present address it should not be any further distance from the school attended by the said infant, than the present distance, and in these circumstances the court doth deem the respondent to be the primary carer of the said infant.
(4) That neither the applicant or the respondent shall remove the said infant from this jurisdiction without the consent of the other party such consent not to be unreasonably held
(5) That at least two weeks notice of any trip abroad to be given to the other party.
(6) That the said infant's passport be retained by the applicant.
5. The court did further declare that the habitual residence of the infant is Ireland, and that the arrangements for access as between the parties herein do continue, and the said infant do spend alternate weekends with the applicant from Friday evening to Tuesday morning and on the other week the applicant do have one night overnight access with the infant the applicant to collect the infant from school on Monday and return the said infant to school on Tuesday morning.
6. The parties met in January 1999 and commenced a relationship. The applicant lived in Dublin and the respondent resided in South West Ireland. The parties discovered in March 1999 that the applicant was pregnant and they agreed to cohabit in the South West. The parties have not married each other.
7. The parties commenced living together in the respondent's property in the South West. C. their son was born on the 17th November, 1999.
8. The parties' relationship was volatile, and on a number of occasions the applicant moved out of the respondent's residence, to rented property, the rent being discharged by the respondent. The court is satisfied that the relationship ended in July 2006.
9. Because of the volatile nature of the relationship, the applicant and C regularly moved house. This instability became a matter of concern to the respondent
10. When the property was purchased in 2005, the parties were living apart from each other. The applicant was living with C. at rented property and the respondent was living in a substantial property in his ownership.
11. The respondent is a businessman of substantial means.
12. The applicant is not engaged in gainful employment and during the relationship did not work, except for a short period of part time work on Saturdays at a jewellers.
13. Although the proceedings have been consolidated it is appropriate to deal with the issues in each set of proceedings separately. The court will deal first with the dispute over the legal ownership of the property.
14. The property is a four bedroomed semi detached house. At initial purchase the dwelling house had not yet been constructed. The parties viewed the site in March 2005. The respondent paid a booking deposit of €3,000. There were two separate agreements, a contract for the sale of the site for €70,000 which was signed on the 7th March, 2005, by the respondent. That contract was made between Ger O'Rourke the registered owner and the respondent. A separate building agreement was completed on the same date between Chieftain Construction Limited and the respondent. The contract price was €170,950. The booking deposit had already been paid and there were then stage payments of €18,984.50 on execution, €40,000 on completion of the wall plate and €108,965.50 on the closing date.
15. A deed of transfer dated the 8th June, 2005, was executed by Gerard O'Rourke the registered owner and the respondent was the named transferee, but did not execute the document.
16. A letter of loan offer issued from the Bank of Ireland on the 26th September, 2005, to the applicant. The loan approved was €200,000 repayable over 25 years. The respondent signed a separate letter of the 27th September, 2005, confirming that he was gifting an amount of €50,000 to the applicant which was not repayable and that he was waiving any interest in the property on foot of making the gift. The applicant signed the deed of mortgage on the property which remains undated.
17. The title to the property has not yet been registered, and the mortgage has not been registered as a burden.
18. Apart from the mortgage, the other funds for the purchase including the deposit and fees, have been discharged by the respondent. The respondent has discharged the monthly mortgage repayments paid outgoings on the property and has been responsible for the maintenance and upkeep of the property.
19. The applicant contends that prior to the initial contract for the sale of the property there had been discussions between the parties in 2004 and 2005, as a result of which the respondent had agreed to purchase a property for her to ensure her financial security. The respondent contends that the purpose of the purchase, was to benefit C. and the applicant would be able to reside in the dwelling. A conflict of evidence also exists about the visit to the site in March 2005 when a booking deposit, was paid.
20. Based on the evidence presented to the court by the applicant, the respondent Michael Kennedy of Bank of Ireland and P.K. an employee of the respondent present at the site on the date it was agreed to purchase, the court is satisfied of the following facts:-
(i) The decision to visit the site in March 2005 was not pre-planned. The applicant was either telephoned by the respondent when he was on the way from his offices to the estate or when he had arrived there. There were three houses left for sale, 184 which P.K. agreed to purchase, no 179 the site in dispute and another in the immediate vicinity of 179. There was a choice of two properties both with large sized gardens.
(ii) I am satisfied from the evidence of Michael Kennedy and the documentary evidence that initially the respondent intended to purchase the property in his own name for the benefit of C., but then changed his mind and intended to put the property in the applicant's name and the mortgage documentation was applied for in her name.
(iii) I accept the motives for this were financial to avail of the first time buyer's grant and other potential financial...
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