Sheridan & Quinn (t/a Sheridan Quinn) v Gaynor

• Jurisdiction: Ireland
• Judge: Mr. Justice Feeney
• Judgment Date: 14 September 2009
• Neutral Citation: [2009] IEHC 421
• Docket Number: [No. 135SP/2004]
• Court: High Court
• Date: 14 September 2009

[2009] IEHC 421

THE HIGH COURT

[No. 135SP/2004]

Sheridan & Quinn (t/a Sheridan Quinn) v Gaynor

BETWEEN

NOEL SHERIDAN AND PETER QUINN TRADING UNDER THE STYLE AND PRACTICE OF SHERIDAN QUINN

PLAINTIFFS

AND

JOHN GAYNOR

DEFENDANT

TRIAL OF ISSUE

BY ORDER OF THE HIGH COURT OF THE 28 TH APRIL, 2008,

CECILIA GAYNOR

PLAINTIFF

AND

NOEL SHERIDAN AND PETER QUINN TRADING UNDER THE STYLE AND PRACTICE OF SHERIDAN QUINN

RESPONDENTS

AND

JOHN GAYNOR

NOTICE PARTY

STATUTE OF FRAUDS 1695 S2

WYLIE IRISH CONVEYANCING LAW 2ED 1996 PARA 6.02

SUPERMACS (IRL) LTD & MCDONAGH v KATESAN (NAAS) LTD & SWEENEY 2000 4 IR 273 2001 1 ILRM 401 2000/17/6423

LAND LAW

Contract

Specific performance - Terms - Understatement of actual purchase price - Secret payment of balance - Trial of preliminary issue - Part performance - Payment of monies established - Agreement to agree - Certainty - Lands never identified - Whether interest in lands - Whether interest legal or equitable - Whether sufficient identification of property so as to create legal or equitable interest - Whether payment of money could be part performance - Whether sufficient documentation to satisfy Statute of Frauds - Whether breach of trust established - Whether contrary to public policy to enforce secret agreement - Supermacs Ireland Ltd v Katesan (Naas) Ltd [2000] 4 IR 273 applied - Statue of Frauds (Ireland) Act 1695 (7 Will 3, c 12), s 2 - Secret purchaser declared to have no interest in property (2004/135SP - Feeney J - 14/2/2009) [2009] IEHC 421

Gaynor v Sheridan

Facts: The plaintiff alleged that she had part-purchased with her brother certain lands from her cousin and that she had discharged monies towards the purchase price and she now claimed that she was entitled to fifty percent of the interest in the lands and house. An "under the counter" payment had been provided by the plaintiff no the basis that the real purchase price would not be disclosed. The High Court had previously ordered various issues to be tried on oral evidence, namely, whether inter alia, the plaintiff had an interest in certain lands, the precise nature of that interest, how it might affect a well-charging order previously made by the Court and whether the interest ranked in priority.

Held by Feeney J. that the Ms. Gaynor did not have an interest in the lands. The agreement in relation to the interest was no more than an agreement to agree and at no time was a legal or equitable interest afforded to Ms. Gaynor. The facts and circumstances surrounding the under the counter payment were not such as to provide evidence of the existence of a contract for having a fifty percent share. The plaintiff could not identify any concluded agreement because the precise portion of the lands was never agreed either expressly or impliedly. Neither of the documents at issue provided a sufficient note or memorandum to satisfy the Statute of Frauds (Ireland) Act 1695. There was no basis upon which she could assert that the lands were purchased in trust for her and she could not make the case that there was a repudiation of trust constituting a fraud by the notice party. Even if this conclusion was incorrect, it was clear that all the parties were fully aware that they were participating in a scheme. It would be in breach of public policy if such a contract to conceal the agreement from the Revenue Commissioners were enforceable.

Reporter: E.F.

Mr. Justice Feeney

1 2 1.1 The High Court ordered an issue to be tried on oral evidence in these proceedings. That order was made on the 28^th April, 2008 and it directed that Cecilia Traynor was to be the plaintiff in the issues to be tried and Noel Sheridan and Peter Quinn trading under the style and practice of Sheridan Quinn were to be the respondents and that John Gaynor was to be a notice party.

3 1.2 The issues directed to be tried were, namely:-

2 (i) Whether Cecilia Gaynor has an interest in the lands and property at Farthingstown containing 16.2127 hectares situate in the Barony of Rathconrath County Westmeath and comprised in Folio No. 2538 of the Register of Freeholders, County Westmeath.

3 (ii) If Cecilia Gaynor has any interest in the said lands, what precisely is the nature and classification of that interest, that is, is it a legal or an equitable interest?

4 (iii) Does such a recognition of a legal interest affect the well charging Order and/or Order for sale previously made by the Court (being the Order herein dated the 12^th day of July 2004 [as amended]) and, if so, does the Court, following such a recognition, have jurisdiction to make a well charging Order and/or an Order for sale in respect of the said lands and/or to make an Order for partition and subsequent sale?

5 (iv) If Cecilia Gaynor's interest is an equitable interest, does it rank in priority to the judgment mortgage registered by the Plaintiff?

6 (v) If Cecilia Gaynor estopped from relying on such an interest to frustrate the enforcement of the well charging Order and Order for sale herein?

7 4 1.3 Pursuant to the said order the plaintiff in the issue, Cecilia Gaynor, delivered her points of claim in the form of an affidavit sworn on the 22^nd July, 2008. John Gaynor, the notice party in the issue, also delivered an affidavit sworn on the 22^nd July, 2008 in relation to the issues ordered to be tried by the High Court. The plaintiffs in the action, the respondents in the issue, Noel Sheridan and Peter Quinn trading under the style and practice of Sheridan Quinn, delivered points of defence on the 8^th August, 2008.

8 5 1.4 In the claim made by Cecilia Gaynor, as set out in her affidavit, she asserted that she had "part purchased with my brother John Gaynor the lands and bungalow type residence in Folio No. 2538 at Farthingstown, Rathconrath, Mullingar, Co. Westmeath from my cousin Edward Rogers on the 25^th November, 1996 by way of private treaty". An identical claim was asserted in paragraph 1 of the affidavit of John Gaynor sworn in support of the claim made by his sister. In support of that claim it was sworn by both Cecilia Gaynor and John Gaynor that Cecilia Gaynor had discharged £20,000 or €25,394.76 towards the contract of purchase of the said lands and bungalow type residence to Edward Rogers on the 25^th November, 1996 and it was further claimed that there was a hand-written statement from Edward Rogers confirming that he had received that £20,000 "as part of the sale of contract to Cecilia Gaynor after his death". Affidavits also stated that Edward Rogers had obtained legal advice from solicitors prior to entering into the contract with John Gaynor.

9 6 1.5 A memorandum of agreement was made between Edward Rogers and John Gaynor dated the 12^th December, 1996 wherein it was agreed that Edward Rogers as the vendor would sell and that John Gaynor as the purchaser would purchase in accordance with the special and general conditions of sale contained in the said agreement ALL THAT AND THOSE the property described in Folio No. 2538 of the Register County Westmeath which was held in fee simple by Edward Rogers. The stated purchase price was £25,000 and the special conditions provided, inter alia, that the sale price of £25,000 should be paid to the vendor by the immediate payment of the sum of £2,500 which was to be deemed as the deposit and that thereafter the purchaser, John Gaynor, was "to pay to the vendor the sum of £2,000 each year payable on the 28^th November, 1996 or such other date as may be agreed between the parties". It was also provided for in special condition number 7 that the vendor, Edward Rogers, reserved the "sole right of residence in his favour to reside in the dwelling house on the property in sale and that his right of residence would be registered as a burden on Folio No. 2538 County Westmeath".

10 7 1.6 A deed of transfer and charge dated the 16^th January 1997 was signed, sealed and delivered by Edward Rogers and John Gaynor.

11 8 1.7 The plaintiff in the issue, Cecilia Gaynor, claimed that she part purchased with her brother the lands and bungalow, the subject matter of the proceedings herein. It is claimed that the actual purchase price of the lands and bungalow from Edward Rogers were £40,000 and that Cecilia Gaynor had provided half of that sum. It is claimed by Cecilia Gaynor that she formed part of the purchase of the property by paying the said sum of £20,000 for the lands in Folio No. 2538 and that she is entitled to a fifty per cent interest in the said lands and bungalow.

12 9 1.8 In the points of defence the plaintiffs in the action and the respondents to the issue deny that the plaintiff in the issue, Cecilia Gaynor, has part purchased whether with her brother John Gaynor, or at all, the said lands and bungalow and it is denied that she has discharged £20,000 toward the alleged contract of purchase. It is also denied that Cecilia Gaynor has any interest in the said lands and it was further pleaded that if Cecilia Gaynor has or had any interest in the lands, which is denied, that it is denied that the same affects the well charging order and/or the order for sale made by the High Court on the 12^th July, 2004 and varied by Court order dated the 22^nd January, 2007. It is also pleaded in the points of defence that if Cecilia Gaynor has any interest in the property, which is denied, that she is estopped from relying on same to frustrate the enforcement of the well charging order or the order for sale.

13 10 2.1 Cecilia Gaynor averred that she had part purchased the lands and property at Farthingstown, containing 16.2127 hectares situated in the Barony of Rathconrath, County Westmeath and comprised in Folio No. 2538 of the Register of Freeholders, County Westmeath on the 25^th November, 1996 by way of private treaty. She claimed that she thereby has a fifty per cent interest in the said lands in that she had...