Trinity College Dublin v Kenny

• Jurisdiction: Ireland
• Judge: Ms. Justice Marie Baker
• Judgment Date: 21 December 2020
• Neutral Citation: [2020] IESC 77
• Court: Supreme Court
• Docket Number: Record Numbers: 259/2010, 272/2010

BETWEEN/

THE PROVOST, FELLOWS AND SCHOLARS OF THE UNIVERSITY OF DUBLIN, TRINITY COLLEGE

Plaintiff/Respondent

- AND –

JAMES KENNY

AND

PATRICIA KENNY

Defendants/Appellants

[2020] IESC 77

MacMenamin J.

O'Malley J.

Baker J.

Record Numbers: 259/2010, 272/2010

High Court Record Number: 2008/478SP

THE SUPREME COURT

Sale – Jurisdiction – Equitable remedy – Appellants appealing the sale of their principal private residence – Whether the High Court correctly exercised the jurisdiction to order sale

Facts: The appellants, Mr and Mrs Kenny, appealed to the Supreme Court from the order of Laffoy J of 29 of January 2010, [2010] IEHC 20, by which at the suit of the respondent, Trinity College Dublin (Trinity), she ordered the sale of the principal private residence of the appellants at 4 Temple Road, Dartry, Dublin. The appeal concerned whether Laffoy J correctly exercised the jurisdiction to order sale in lieu of partition of the Dartry premises.

Held by Baker J that Laffoy J did not err in the exercise of her discretion and her order was unimpeachable. Baker J held that the facts of this appeal permitted a just solution which avoided the loss of the family home. Having had regard to the nature of the order sought in the proceedings, Baker J’s view was that the Court should affirm the order for sale, thus protecting the interest of Trinity, but stay the operation of that sale upon conditions which protect the interests of Mrs and Mr Kenny and relieve the harshness of an immediate order for sale.

Baker J held that she would dismiss the appeal against the order for sale of Dartry and place a stay on the sale subject to the condition that the property in Donegal is placed on the market for sale within 6 months of the date of the judgment, and the entire proceeds of sale, after the discharge of the costs of sale, be paid to Trinity in part discharge of its debt. Baker J held that the stay should then operate until the sale of the premises at Dartry or the death of the last to survive of Mrs Kenny and Mr Kenny, whichever is later, and allowing a reasonable time for a personal representative to sell thereafter. Baker J held that this condition requires that Mrs Kenny should contribute her half share in the proceeds of sale of Donegal towards the debt to Trinity, and she should be given credit for that payment by an increase in the value of her equity in Dartry, so that on any sale or other disposition of the premises, that amount is to be credited to her interest. Baker J held that Mrs Kenny would be given liberty to apply to the High Court to fix the percentage of her equity in the light of evidence as to the proceeds of sale of Donegal and the agreed value (or in the absence of agreement, the median value) of the Dartry premises at the date of sale of Donegal. Baker J held that because of the risk that Mr Kenny may pre-decease his wife and before the Donegal house is sold, the stay is also to be conditional on the parties taking steps to sever the joint tenancy in the two Donegal folios within 3 months of the date of the judgment. Baker J held that the children of the couple shall have liberty to purchase the premises in Donegal should they choose, and at a price agreed between the parties. Baker J held that all other orders regarding the sale should be remitted to the High Court, which may extend the time for sale for cause shown.

Appeal dismissed.

JUDGMENT of Ms. Justice Marie Baker delivered the 21st day of December, 2020

1 This is the appeal from the order of Laffoy J. of 29 of January 2010, [2010] IEHC 20 by which at the suit of the plaintiff (“Trinity”) she ordered the sale of the principal private residence of Mr. and Mrs. Kenny at 4 Temple Road, Dartry, Dublin. In addition to the order for sale, she made an order that three judgment mortgages registered by Trinity were well charged against the interest of Mr. Kenny in that premises in Dartry, and against his interest in registered lands in Co. Donegal comprised in Folios 21400 and 43061, being a weekend or holiday home of Mr. and Mrs. Kenny, and the adjoining lands. The well charging orders have not been appealed.

2 The three judgment mortgages were registered on foot of judgments for taxed costs awarded against Mr. Kenny in long running litigation regarding the development of student accommodation close to his home. The amount stated to be due for costs at the date of the High Court judgment was €663,239.34, and Laffoy J. declared that sum, and continuing interest, well charged against the interest of Mr. Kenny in the two premises.

3 Laffoy J., having reviewed the authorities and the evidence, was satisfied that the value of that house at Dartry was such that Mrs. Kenny, the co-owning non-debtor spouse, would, after a sale and discharge of a prior legal mortgage for which she was jointly liable, have sufficient funds to purchase alternative accommodation, and that, while “there will be a degree of disruption”, an order for sale would not deprive the couple of a home. She regarded that as being the “crucial factor in determining whether the Court's discretion should be exercised in favour of ordering a sale” (at p. 20 of her judgment).

4 She refused to order sale of the Donegal premises as she considered that on the authority of the judgment of Finlay Geoghegan J. in Irwin v. Deasy (No. 1) [2004] IEHC 104, [2004] 4 IR 1, and her own judgment in Irwin v. Deasy (No. 2) [2006] IEHC 25, [2011] 2 IR 752, Trinity, not being a co-owner, lacked standing to seek an order for partition, and therefore relief by way of sale in lieu of partition.

5 Three appeals were initially lodged against the orders of Laffoy J. The appeal against the refusal of Laffoy J. to make an order for sale of the premises in Donegal has now been abandoned.

6 Mrs. and Mr. Kenny have each lodged an appeal in identical form, and the primary argument on the appeal was made by counsel on behalf of Mrs. Kenny. Mr. Kenny, who is unrepresented, filed written submissions and made some oral submissions.

7 The two premises were held by Mr. and Mrs. Kenny as joint tenants, and it is agreed that they are equally beneficially entitled in each. As a result of the registration of the judgment mortgage on the premises at Dartry the joint tenancy has been severed and they now hold that premises as tenants-in-common. As the Donegal house and lands are held under a registered title, the registration of the judgment mortgage did not sever the joint tenancy.

8 The appeal concerns whether Laffoy J. correctly exercised the jurisdiction to order sale in lieu of partition of the Dartry premises, but some consideration is required regarding whether a change in the factual circumstances might justify this Court coming to a different view. That question involves an analysis of the nature of the remedy of partition and sale in lieu, and whether what is engaged is an equitable remedy.

9 The appeal is concerned with the law before the commencement of the Land and Conveyancing Law Reform Act 2009 (“the Act of 2009”), by ss. 31 and 117(2)(c) of which a court has a discretion on a judgment mortgage suit to make such other order relating to the land “as appears to the court to be just and equitable in the circumstances of the case”. The jurisdiction before that legislative intervention would seem to be more narrow, as will be discussed more fully below.

10 This Court in Irwin v. Deasy [2011] IESC 15, [2011] 2 IR 752 at para. 11 seems to have considered that s. 31 of the Act of 2009 did not apply to judgment mortgages created before that Act came into force, but that has been doubted in paragraph 8.151 of the 2 ^nd edition of Heather Conway's authoritative text Co-ownership of Land: Partition Actions and Remedies, published by Bloomsbury in 2012 (the first edition, published in 2000, was drawn on in the judgment of Laffoy J. in the High Court in Irwin v. Deasy at para. 19 et seq. and passim). Given that the Partition Acts were repealed by the Act of 2009, and because unlike in s. 30(4) there is no legislative exclusion of retrospective application of s. 31, it is at least arguable that section 31 applies to all judgment mortgage suits, at least those commenced after the coming into operation of that Act in 2010. The point was not specifically argued before Laffoy J. in the present case, nor directly on this appeal, although counsel for Trinity and for Mrs. Kenny both relied in argument on case law under the Act of 2009.

11 I express no firm view in the present appeal on this point because it seem to me that the factors on which Laffoy J. relied are not in substance different from those that have been considered in post-2009 authorities. The question will be considered more fully below in regard to the range of remedies available in this appeal, and recent case law under the Act of 2009.

The factual background

12 Mrs. Kenny is now 87 and her husband 88. They were ten years younger when Laffoy J. made the order for sale, and the mortgage suit was issued twelve years ago. Mr. Kenny was gravely unwell and unable to pursue the appeal for some years, the appeal unfortunately was delayed by reasons of historic delays in this Court before the establishment of the Court of Appeal, and this appeal is one of the last “heritage” appeals which falls for hearing.

13 The couple has lived for 25 years or thereabouts in the house in Dartry. Four of their five children reside in Dublin, and they say this house is suitable for their current needs as they need at least three bedrooms to facilitate nursing or care support in the house. Both of them have medical problems. Mrs. Kenny is from the Philippines and has lived in Ireland for more than 60 years, for most of that time within the Dartry area. She has no other relatives in Ireland. Their income seems to be the non-contributory State Old Age Pension.

14 The premises in Dartry is held subject to a legal mortgage...