Sheridan Quinn v Gaynor

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 08 November 2012
• Neutral Citation: [2012] IEHC 410
• Docket Number: [No. 135 SP/2004]
• Court: High Court
• Date: 08 November 2012

[2012] IEHC 410

THE HIGH COURT

[No. 135 SP/2004]

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

BETWEEN

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

PLAINTIFF

AND

JOHN GAYNOR

DEFENDANT

REAL PROPERTY

Possession

Application for order for vacant possession - Judgment for unpaid legal costs - Monies paid in course of bankruptcy proceedings - Defendant unrepresented in settlement of bankruptcy proceedings - Contention that acceptance of monies not expressly made without prejudice to proceedings for possession - Whether sums declared to be well charged continued to be due and owing - Dispensing of usual requirement for conditions of sale be settled by counsel prior to order for possession - Interests of justice - Order for possession (2004/135SP - Finlay Geoghegan J - 8/11/2012) [2012] IEHC 410

Sheridan v Gaynor

Facts: The plaintiffs had acted for the defendant as solicitors in a previous matter. Due to unpaid legal costs by the defendant, the plaintiffs had obtained judgment against the defendant and a judgment mortgage affidavit was registered against land held by the defendant. Following a lengthy period of litigation, the plaintiffs were granted an order in 2010 that vacant possession of the land was to be delivered up. This requirement was not met, although a sum of costs was eventually paid up.

The plaintiffs now sought a fresh order for possession, and an order for attachment and committal in respect of the defendant.

Held by Finlay Geoghegan J, that as adequate service had not been made in relation to the order for attachment and committal, the matter would only be heard in relation to the order for vacant possession. The defendant contended the sum paid in relation of costs was in settlement of the matter as a whole, and sought to set aside a number of earlier orders.

The Court considered the evidence, and refused to set aside the earlier orders and also declined to accept that the sum paid in relation to costs was intended to settle the matter as a whole. As the sum charged on the land remained outstanding, the Court therefore ordered that the lands were to be sold on conditions settled by the Court, unless payment in full was made within one month. Due to the earlier delays in the matter, the Court was prepared to depart from usual practice and grant the order for possession before conditions of sale were settled.

Ms. Justice Finlay Geoghegan

1 This judgment is given on a motion issued on 8^th February, 2012, by the plaintiff seeking, inter alia, an order that the defendant deliver vacant possession of the lands contained in Folio 2538 in the Register of Freeholders, County Meath.

2 The background to the present application is a long-running dispute between the plaintiff and the defendant which originated in the plaintiff acting as solicitors for the defendant and unpaid costs. In High Court proceedings [2002 No. 539 S], on 8^th December, 2003, judgment was granted in the sum of €77,016.57 and costs against the defendant herein. A judgment mortgage affidavit in respect of the said judgment was registered in the Land Registry on 16^th February, 2004, on the defendant's interest in the lands in Folios 5864, 2299 and 2538, County Westmeath.

3 In the present proceedings, an order was made on 12^th July, 2004, declaring that the principal monies secured by the said judgment mortgage was well charged on the defendant's interest in the lands in Folios 5864, 2299 and 2538, County Westmeath. The order records that the amount then due to the plaintiff pursuant to the judgment of 8^th December, 2003, was a sum of €63,486.90 (a portion of the judgment had been paid by the defendant) and provided that in default of payment within one month that the lands be sold.

4 By further order of the High Court made on 22^nd January, 2007, the order of 12^th July, 2004, was varied by the deletion of the references to the lands in Folios 5864 and 2299 of the Register of Freeholders, County Westmeath. Thereafter, the well charging order and order for sale applied only to the defendant's interest in the lands in Folio 2538 in the Register of Freeholders, County Westmeath.

5 By a motion issued in January 2008, the plaintiff sought vacant possession of the lands comprised in Folio 2538 in the Register of Freeholders, County Westmeath, for the purpose of the sale of the said lands. In response thereto, the defendant contended that his sister, Ms. Cecilia Gaynor, had an interest in the said lands. Thereafter, by order of 28^th April, 2008, the Court set down certain issues for trial as to the interest, if any, of the said Ms. Gaynor in the lands in Folio 2538 of the Register of Freeholders, County Westmeath. After further procedural steps, those issues were heard and determined by Feeney J. in a judgment delivered on 12^th September, 2009. It was decided that Ms. Gaynor did not have an interest in the said lands. An order for costs (to be taxed in default of agreement) of the trial of the issues was made against the defendant and Ms. Gaynor, jointly and severally. The defendant appealed the judgment and order of Feeney J....