Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O'Siodhachain & Anor v. O'Mahony & Anor [2002] IEHC 175 (31 October 2002)
URL: http://www.bailii.org/ie/cases/IEHC/2002/175.html
Cite as: [2002] IEHC 175
[New search] [Printable RTF version] [Help]
BETWEEN
PLAINTIFFS
DEFENDANTS
JUDGMENT of Mr. Justice Kearns delivered the 31st day of October, 2002.
This sorry saga has its origins in the desire of the defendants to sell all or portion of farmlands jointly owned by them and comprising about 70 acres at Ballybeg, Co. Kerry. The farm contains a dwelling house, a number of outhouses and sheds, various fields and is also in part bog land. The events giving rise to the present dispute between the parties arose following an unsuccessful public auction to sell the farm which took place on the 14th day of August 1998.
The defendants are a married couple with two young children who married in 1988. The first named defendant was born in or around 1966 and his background was in farming. He left school at 16 years of age. The farm had previously been in the ownership of Sean O'Mahony's family, but had been transferred to the defendants, subject to a right of residence in favour of Sean O'Mahony's parents. Prior to the auction in 1998 arrangements had been agreed between the defendants and the O'Mahony parents whereunder the O'Mahony parents would waive their right of residence if the farmhouse was sold, subject to being relocated at the defendants expense.
Following their marriage, the defendants had initially lived in the O'Mahony farmhouse at Ballybeg, but in 1992 moved to the nearby village of Gneeveguilla, where, up to and including the time of the auction, they lived in what had formerly been Geraldine O'Mahony's family home, which in addition had a small grocery shop and a number of petrol pumps.
Sean O'Mahony had been involved in a road traffic accident in 1983, following which he found it difficult to carry out farming work on the farm at Ballybeg. He also had some visual disability. In 1998, he and his wife were keen to sell off the farm and to move out of the area altogether. It was their intention at the time to place the proceeds of sale of the farm in an investment property in Dublin.
At the auction, the property was offered in different parcels, but neither the farm as a whole or the different parcels attracted any offers or any worthwhile interest. Later that evening, however, and without prior appointment, the plaintiffs arrived at the farmhouse and there spoke with Sean O'Mahony's father, indicating some degree of interest in the property. On that occasion, Mr. O'Mahony Snr. showed the plaintiffs around the farmhouse, and the yard and outhouses. A phone call was made to the defendants at Gneeveguilla to inform them that the plaintiffs were on the property and some days later the first meeting between the plaintiffs and the defendants took place.
The plaintiffs jointly operate as Paralegal Technical Allied Services, which was set up in the mid 1990s to provide assistance to people with legal difficulties. The services consist not merely of giving assistance in getting litigation organised and assembling paper work for that purpose, but in counselling clients and providing assistance to people and families with social or other problems. The evidence in the case indicates that during the period from August 1998 to March 2001, the plaintiffs were involved in investigative work in Donegal, were assisting various litigants in court cases both in Dublin and at different country locations and were also engaged in litigation on their own account.
Apart from his paralegal and litigation activities, the first named plaintiff is a political activist and author and producer of cultural and other works. He is a well known figure in the Kerry area.
The second named plaintiff was born and educated in Scotland and obtained a BA Honours degree in Paisley. She read for an MA in England. She qualified as a secondary school teacher and came to Ireland in 1982 where she did a FAS retraining programme in UCC. Thereafter she worked with AnCO, teaching people how to set up in business. She became interested in legal work following the breakdown of her marriage in 1986 which led to frequent court appearances for which she could not get legal aid. She started a BCL course in UCC in 1998 and was conferred with a BCL degree in September 2001. She completed her LLB studies in September of 2001 and sat entrance examinations for the Law Society in April/May, 2002.
In August 1998, the plaintiffs were living in rented accommodation in Scartaglen, Co. Kerry, a property which they had to vacate by April of the following year. Mrs. Herron was also the owner of a terraced house at Sunday's Well in Cork, which had been vacant for a number of years and which was owned subject to a mortgage in favour of Cork Corporation. There are also other burdens affecting this property to which I shall later refer.
While Mr. O Siodhachain was distantly related to Sean O'Mahony, and while Mr. O'Mahony knew of Mr. O Siodhachain by reputation, the parties were not directly or previously acquainted until they first met some days after the abortive auction.
As much of the subsequent events, and in particular the intent and motivation of the parties, is hotly contested, I propose at this stage to confine myself to a narrative of the matters which are common case and deal with the conflicts in the course of my review of the evidence given by the witnesses.
In the days and weeks following the auction, it is not in dispute that the plaintiffs called to the defendants' shop at Gneeveguila where discussions of a general nature took place about the possible sale of portion of the farm to the plaintiffs. The plaintiffs interest was mainly focused on the farm house, its curtilage and outhouses, and a number of adjoining fields, which together formed a parcel of about 40 acres.
The plaintiffs took the view at a very early stage that the O'Mahony's were a dysfunctional family, and that Sean O'Mahony in particular was very much dominated by his parents, who very quickly appeared to have formed a dislike of the plaintiffs and were extremely unhappy at the prospect of the defendants selling the farmhouse to the plaintiffs. Mr. O Siodhachain encouraged Mrs. O'Mahony to develop more independence on her own account and gave her books on practical philosophy and psychology to assist her in this regard. He encouraged her to attend a course in philosophy in Killarney, which she duly did. Mrs. Herron for her part formed a friendship with Geraldine O'Mahony and the two women commenced confiding in each other.
As the relationship between the parties developed, the plaintiffs offered their expertise to the defendants in relation to what might be done with the proceeds of sale of the farm at Ballybeg. At different times, the plaintiffs brought the defendants to view properties as far away from each other as Athlone and Tarbert. Projections and drawings were prepared and supplied by the plaintiffs, such as might put the plaintiffs in the best possible position to apply for loan facilities from a lending institution. Amongst the various proposals under consideration at different times were the extension of the shop premises at Gneeveguilla, the opening of a business in Tarbert and a supermarket project in Rathmore, Co. Kerry, which latter option the defendants ultimately opted to pursue in 2000. Apart from one set of drawings, for which a sum of £200 was paid to Mr. O Siodhachain, these services were rendered as a "gift" by the plaintiffs to the defendants.
Again, it is not in dispute that the plaintiffs took a very pro-active role in the defendants lives. Nor is it in dispute that Mr. O Siodhachain advised and arranged for Mr. O'Mahony to seek and obtain psychological help and counselling to help him overcome problems identified by the plaintiffs. In particular, Mr. O Siodhachain recommended that Mr. O'Mahony consult with Dr. Kinsch in Tralee, advice which was taken by Sean O'Mahony. It appears that a number of counselling sessions did take place in late 1998 or early 1999, following which Dr. Kinsch paid a visit to the defendants home at Gneeveguilla for further consultation and discussion with both defendants.
Shortly before Christmas, 1998, the defendants spent an evening with the plaintiffs at Scartaglen where a discussion took place about the viability of purchasing a property for letting purposes by creating apartments. It appears to have been on this particular occasion that Mr. O Siodhachain produced figures and projections in relation to Mrs. Herron's property in Cork, which suggested that that property, if renovated and set in flats, might produce a better income then some of the other options under consideration, including the investment property in Dublin. The Sunday's Well property was close to UCC and thus suitable for students.
Following this discussion, Mr. O'Mahony, apparently on his own initiative, went to inspect the property in Cork as did his wife. A number of visits to Sunday's Well took place, but no surveyor, architect or engineer was ever retained on behalf of the defendants for the purpose of assessing what renovations might be necessary to the Sunday's Well property or the likely cost of same. Nonetheless, the defendants, and in particular Mrs. O'Mahony, were enthusiastic about pursuing further the idea of acquiring the Cork property, which in turn led to discussions between the parties of a "back to back " arrangement whereby the property in Cork might be transferred to the O'Mahonys in exchange for the defendants 40 acre parcel of land at Ballybeg, including the dwelling house, subject to some allowance for renovations to the Cork property..
Lengthy discussions then ensued between, in particular, Mr. O Siodhachain and Mr. O'Mahony, to see if mutually satisfactory terms could be arrived at These discussions also involved what use Mr. O'Mahony would make of the lands at Ballybeg even if transferred to the plaintiffs, and there were also lengthy discussions about machinery, use of outhouses and a penumbra of related issues.
On the 10th April 1999, the plaintiffs wrote to the defendants to say that unless the proposed purchase of Ballybeg was completed within 14 days, the plaintiffs would be obliged to rent accommodation elsewhere (their time at Scartaglen having expired) and would hold the O'Mahonys to account for any rent which they might incur in so doing.
There then followed an all night discussion between the parties at Gneeveguilla on the 23rd April 1999 which led directly to the execution of the written document which is the subject matter of these proceedings and which is hereinafter referred to as "the first contract". This document was drawn up and prepared by the plaintiffs. It is not in dispute that the defendants obtained no independent legal advice prior to executing the same.
Under the first contract, the defendants agreed to purchase the plaintiffs property at Sunday's Well in Cork and the plaintiffs agreed to purchase the farmhouse, outbuildings and about 40 acres of land, the property of the defendants at Ballybeg. The purchase price for the Sunday's Well property was £374,000 and the purchase price for the lands at Ballybeg was £214,000. In addition, the defendants were to get the benefit of a sum of £95,000 to be spent on renovations on the Sunday's Well property. The document further provided that purchase and sales contracts should be signed and exchanged as soon as practicable but in any event not later than the 8th December 1999.
In view of the dispute which subsequently arose between the parties, it is appropriate to set out verbatim those provisions of the document which related to the use and occupation of the lands at Ballybeg prior to the completion of any contract for sale. Firstly, the "preamble " to the document recites the following:
This document is to set out the terms and conditions as agreed between all parties on Saturday April 23,1999 at Gneeveguilla, Rathmore regarding the sale and transfer of properties between both parties and such interim arrangements as are required to allow all parties the use and benefit of the properties and security for their interests in same prior to the signing of the sales and purchase contracts on or before the &11 December 1999, at which time this agreement will cease to have effect "
The document later provided:
10. "to facilitate the renovation work in Sunday's Well and to protect the interest of the purchasers and the moneys expended in the reconstruction, the vendors as set out in (1) of the foregoing will lease to the purchasers as set out in (2) of the foregoing the property in Sunday's Well for a 15 year period.
11. To facilitate the occupation and renovation of Ballybeg the vendors as set out in (2) of the foregoing will lease the property as set out in (4) of the foregoing to the parties as set out in (1) of the foregoing.
12. The 15 year leases as set out in (10) and (11) of the foregoing will come into effect with the signing of this agreement and will remain in
force until superseded by the contracts as set out in the preamble.
13. It is agreed by all parties that the contracts for the sale and purchase of Sunday's Well in Ballybeg properties be exchanged between the parties solicitors as soon as the renovations of the main residence of Sunday's Well is complete or in any event not later than 5* December
1999.
17. Both parties agreed that this document will cease to have effect on the signing of the contract for both properties on or before the 8? December 1999."
Following the execution of this document, the first named defendants' parents were prevailed upon to vacate the dwelling house and move into rented accommodation. The plaintiffs moved into occupation of the defendants' farmhouse in May 1999 and have remained there since. They have paid neither rent nor purchase moneys to the defendants.
In the months that followed, no work by way of renovations to Sunday's Well was carried out, nor was any schedule of works prepared or agreed, nor was any expert or qualified professional retained to advise the defendants in any way in relation to Sunday's Well.
In November 1999 the defendants asked the plaintiffs to be relieved of their obligation to proceed with the transaction insofar as the acquisition of the Sunday's Well property was concerned. The plaintiffs agreed to this request. Without objection from the defendants, the plaintiffs continued to reside at Ballybeg. No renovations or works were carried out at Ballybeg.
In February, 2000, the defendants instructed their solicitor, Mr. Terence Casey, to prepare a contract for the sale of the farm at Ballybeg to the plaintiffs to the sum of £214,000. It was the agreed background position between the parties that a £1,000 deposit would be sufficient, it being recognised that the plaintiffs were not in a position to offer more at that particular time. The contracts were duly sent out and returned with a draft for £1000. This contract is hereinafter referred to as "the second contract". This contract provided for a closing date some six months from the lllh February 2000. When on the return of the contracts signed by the plaintiffs Mr. Casey noted that a deposit of only £1,000 had been paid with a six month closing period he advised the defendants against proceeding further. For that reason that sale did not proceed and that document is not of itself an issue in these proceedings.
Throughout 2000, the plaintiffs made efforts both in Ireland and in the United Kingdom to raise the necessary funds to purchase the defendants' farm. The defendants for their part remained willing to sell the farm to the plaintiffs, notwithstanding the history to that point. By mid 2000, the defendants had opted to purchase a supermarket premises in Rathmore and were themselves coming under increasing financial pressure to marshal the necessary funds both for the acquisition of the property and for the setting up of the business in Rathmore. The unchallenged evidence of Mr. O'Mahony was that the defendants paid the sum of £260,000 for the shop in Rathmore in which context they applied for and obtained loan advances of 20% of the purchase price from Anglo Irish Bank to buy, stock, and fit out the supermarket for business purposes.
Following this acquisition, the defendants instructed Mr. Casey to draw up another contract for the sale of Ballybeg to the plaintiffs (hereinafter referred to as the "third contract"). In this contract the purchase price for the defendants property is stated to be £220,000 with a deposit of £22,000 payable by the plaintiffs. This contract provided that the sale should be closed on or before the 15th March 2001. It further provided that the contract would not be binding on the vendors until such time as it was signed by them and that no contract for sale should be otherwise construed.
This contract was in turn sent back in amended form to Mr. Casey through the plaintiffs' solicitors with a deposit of £100. Mr. Casey called the defendants into his office and advised them strongly against entering into the contract. While the second named defendant was keen to proceed, Mr. Casey said he would not act for the defendants if they insisted on going ahead. It is not in dispute that executed contracts were never returned to the plaintiff's solicitor.
In early March, 2001, the plaintiffs called, without the knowledge of the defendants, to Mr. Casey's office in Killarney. They sought an extension of the closing date in the third contract from the 15th March, 2001 for at least one month as they believed they could still sell the Cork property. Mr. Casey, who only agreed to the discussion on an "off the record" basis, felt a longer period of time would be required if no purchaser was immediately available, and there was no such purchaser, and invited the plaintiffs through their solicitor to write to him requesting an extension of time. It is not in dispute that at the particular meeting, the plaintiffs offered to waive their entitlement to enforce any claim they might have to the 40 acre farm if they got the dwelling house and yard. Following this meeting, Mr. Casey received a letter from the plaintiff's solicitor and called his clients in for a meeting.
In the course of his discussions with his clients, he voiced his suspicions as to whether or not the plaintiffs were in a position to sell the property in Cork. He advised his clients to seek possession of their farm at Ballybeg and to move to eject the plaintiffs.
A notice to quit dated the 5th April, 2001 was served on the plaintiffs requiring them to deliver up possession on or before the 13th April, 2001.
District Court ejectment proceedings were commenced on the 30th April, 2001.
The proceedings and the issues
The present proceedings were commenced by Plenary Summons issued on the 29th August 2001.
In these proceedings, the plaintiffs claimed an injunction prohibiting the defendants from proceeding with the ejectment proceedings pending the determination of the present proceedings. An interlocutory injunction was also sought to restrain the first named defendant from harassing the plaintiffs or interfering with the Plaintiffs in their possession of the premises at Ballybeg pending the determination of the proceedings. The summons further sought a declaration that the document or agreement entered into by the plaintiffs and the defendant on the 28th April 1999 was a lawful and valid lease.
A statement of claim was delivered on the 5th September 2001, on which date the plaintiffs issued a Notice of Motion for an Interlocutory Injunction to restrain the first named defendant as hereinbefore stated.
A replying Affidavit of Sean O'Mahony was sworn on the 11th September 2001, following which Donal O Siodhachain swore an affidavit on the 26th September 2001, to which was added a supplementary affidavit of Patricia Herron on the 1st October 2001.
The matter came before this Court on the 22nd October, 2001 when the controversy between the parties was outlined in some detail. I decided that, in the interest of having all matters disposed of at the same time, to injunct the continuance of the District Court proceedings and to set rigid timetables for pleadings and discovery so as to facilitate the earliest possible plenary hearing of all issues.
Thereafter a defence and counterclaim were delivered on the 12th November 2001.
Before that time, Mr. Terence Casey, who had been named in the proceedings as a third named defendant, successfully brought an application before Murphy J. on the 2nd October 2001 for an order striking out the proceedings against him. This order was the subject matter of an appeal to the Supreme Court which dismissed the appeal of Mr. O Siodhachain and Mrs. Herron on the 6th December 2001.
Affidavits of discovery were sworn by Mrs. Herron and by Sean O'Mahony, including a supplemental affidavit of discovery sworn by Mrs. Herron on the 31st May, 2002.
On the 10th May, 2002, Mrs. Herron brought a further Motion for Discovery seeking further and better discovery as per her letter to Mr. Casey dated 13* March 2002. While this matter had been adjourned in the Master's Court to a date subsequent to the commencement of the hearing before this Court, the same was dealt with during the course of the hearing before the Court as appears from the review of the evidence. On the 10lh May, 2002, the proceedings appeared in a list to fix dates before Kelly J. Having heard Mrs. Herron on that occasion, Kelly J. directed that the proceedings be listed for hearing on Tuesday the 18lh June 2002. The plaintiffs appealed the order of Kelly J. to the Supreme Court.
On the 18* June 2002 when the matter was listed before Kelly J., the plaintiffs again unsuccessfully applied to adjourn the matter and the plaintiffs then immediately moved an application in the Supreme Court by way of appeal, from the order of Kelly, J., which said application was refused by the Supreme Court.
The application for adjournment was renewed to this Court on the 18* June and was also refused.
Further applications for adjournments were made by the plaintiffs to this Court during the hearing of the proceedings before this Court. One application which was premised on a medical indisposition affecting Mrs. Herron was granted. Further adjournment applications, sought for the purpose of initiating proceedings against me as the trial Judge in the case, together with other defendants, was refused.
As appears from the Affidavit of Patricia Herron sworn herein on the 10* May 2002, the case had been put in to the list to fix dates first on the 11* January, 2002. At that time, it was put back to the next list to fix dates in March, 2002 when Mrs. Herron indicated to the Court that a date for hearing in April or May would not suit her as she had law exams during those months. As already stated, Mrs. Herron, notwithstanding this adjournment, sought the further adjournment refused by Kelly J. on the 10* May, 2002. As is acknowledged by Mrs. Herron in her Affidavit, the time limits specified by me when injuncting the continuance of the District Court proceedings included the requirement that the case should go into the list of fix dates in January 2002.
During the course of the hearing, I invited the parties to identify the real issues in the case. As appears from the Statement of Claim delivered by the plaintiffs, certain reliefs sought are in contradiction of each other. In the course of submissions, Mrs. Herron indicated to the Court that the plaintiffs were not placing any form of reliance on the second contract. They were however asserting their right to occupy and remain in occupation of the defendants' farmhouse and lands at Bailybeg under and by virtue of the document dated 28th April, 1999, as varied by an alleged oral agreement between the parties made thereto when the defendants withdrew from the purchase of the Sunday's Well property. In the alternative, the plaintiffs contended that a concluded and valid contract was made between the parties in October 2000.
Taking in to account the defence and counterclaim delivered in the case, the issues to be determined are as follows:-
(a) Is the document dated 28th April, 1999, effective to create a valid lease for the stated period of fifteen years or otherwise?
(b) If so, was the execution of the document in question procured by undue influence, or was the making of the agreement attended by
circumstances of oppression or unfairness which would require the Court to intervene to set it aside?
(c) Was there a concluded and valid contract made between the parties in respect of the lands at Bailybeg in September/October 2000?
(d) Are the defendants entitled to an Order for possession of the farmhouse and lands at Bailybeg?
The Evidence
The execution of the first contract not being in dispute, the Court ruled that the defendants should first give evidence in support of their contention that the making of the first contract was procured by undue influence or was otherwise attended by circumstances of oppression or unfairness which would warrant the intervention of the Court.
In reviewing the evidence, the Court will not again refer to those undisputed matters and events already outlined which were established in the course of the evidence, but will rather concentrate on those areas where conflicting evidence was given.
Sean O'Mahony told the Court that in 1998 the defendants had decided to sell their 70 acre farm with a view to raising money for investment purpose. He also had in mind moving out of the area altogether.
He only knew Mr. O Siodhachain by repute although he accepted there was a family connection. From the outset, Mr. O'Mahony felt the plaintiffs were trying to win over the trust of his wife and himself and from an early stage, he said, the plaintiffs virtually lived with them on a constant basis, offering all sorts of services, including the preparation of financial projections and plans for various business ideas in which they sought to interest the O'Mahonys. Mr. O'Mahony informed the Court that he was led to believe that the plaintiffs could do any legal work in respect of any sale of the property for nothing if the property was sold to them.
After a while, aspects of the relationship with the plaintiffs began to disturb Mr. O'Mahony. He felt they were driving a wedge between himself and his wife, saying, for example, that Sean should be operating the pumps outside the shop operated by his wife at Gneeveguilla, rather than sitting around while his wife did such work. The plaintiffs, according to Mr. O'Mahony, suggested openly that Sean was very manipulated by his parents.
Mrs. Herron suggested to Mr. O'Mahony that there were unhappy differences between Mr. O'Mahony and his wife which had led in 1992 to Geraldine leaving their home in Ballybeg without him to go back to her family home at Gneeveguilla with her baby. Mr. O'Mahony stated that they had both gone to Geraldine's family home with their child in 1992 because her father was extremely ill at the time and required care and support. He did however accept that part of the reason was that Geraldine did not get on too well with his parents. Mrs. Herron pressed Mr. O'Mahony to accept that he was a person prone to depression, that he spent days on end in bed, both before and after the time when she and her co-plaintiff met with him. Mr. O'Mahony agreed that his parents interference did get him down at times, but not to the point where he ever needed to spend time in bed or require medical or psychiatric help. He accepted suggestions from Mrs. Herron that his parents demanded to know the reason on every occasion where Sean sought to use the family car and required him to account for the mileage.
Mr. O'Mahony stated that he had received psychiatric counselling from Dr. Matt Kinsch in Tralee some months after first meeting the plaintiffs. This was Mr. O Siodhachain's idea. He had also seen some other counsellor whose name he could not recall. The psychiatric advice he had received was to have no further dealings with Mr.O Siodhachain.
He was challenged on his assertion that the plaintiffs "lived" with the O'Mahonys, that the plaintiffs were away a lot of the time on other unrelated business. Mr. O'Mahony agreed that this was so, but pointed out that he and his wife had travelled to Donegal with the plaintiffs and visited a number of properties with them.
Mr. O'Mahony stated that some months after first meeting with the plaintiffs, they indicated they had a property in Cork that might be a more suitable alternative investment opportunity. He wasn't interested, but felt his wife Geraldine was very much won over. Some time after Christmas 1998 he went to look at the property which was located in Sundays Well in Cork. He felt it was in a very poor condition having been vacant for a long time. He said that Mr. O Siodhachain had suggested swapping the farm at Ballybeg for the plaintiffs property in Cork, subject to some allowance for renovations to the Cork property. This was with a view to making the Cork property fit for letting in flats. Mr. O'Mahony told the Court that he wished to have an accountant, engineer and solicitor look at the proposal, but the plaintiffs, having initially agreed to this approach, changed their minds and suggested instead that they would put the O'Mahonys in touch with solicitors of their nomination. In the event no surveyor, architect or engineer ever looked at the property on their behalf.
Mr. O'Mahony went on to describe the events which took place in the dwell inghouse at Gneeveguilla on the night of the 23rd April 1999. On that night, he said that without prior arrangement the plaintiffs called and the parties then sat up all night discussing the proposed deal to be made. His recollection of the leasing arrangement was to the effect that Mr. O Siodhachain had mentioned a 99 year lease as being effective as a means of avoiding tax. There had been no mention of any rent in respect of leases on either property. However, when the plaintiffs later that same day came back with a written document in which there was reference to a 15 year lease he asked about it and was told not to worry, that it was for "tax purposes" only. He told his own counsel that it was his understanding that if contracts were not exchanged by the 8lh of December 1999, then the whole transaction would fall through. He also said that Mr. O Siodhachain had often said to him that the document wasn't worth the paper it was written on. He did not accept in cross examination that the document was only signed by the parties on the 28th of April 1999. He further stated that when it was signed on Sunday 24lh, he was told by the plaintiffs not to discuss the document either with Mr. Casey, the O'Mahonys solicitor, or anyone else. He denied that the document had been left with himself and his wife for some days for their careful consideration or that they had been advised to discuss the entire matter with his solicitor, or some other solicitor.
The first written version of the document was seen by him on Sunday evening. It was then when he signed it and he recalled changing the figure in respect of renovations on the Cork property from £75,000 to £95,000.
When the document had been executed, he arranged for his parents to move out of the dwellinghouse to rented accommodation. Under the new arrangements worked out with the plaintiffs, he retained use of certain outhouses and a workshop on the lands. Mr. O Siodhachain worked some of the fields, cutting and baling hay which, according to Mr.O'Mahony, was left in the fields and needed to be removed by Mr. O'Mahony. Later by agreement, Mr. O'Mahony, let the fields and the plaintiffs occupation of the disputed property was confined to the house and surrounding curtilage.
Before the year was out, Mr. O'Mahony told the Court that his wife and he had decided they no longer wished to proceed with the purchase of the Cork property, because they wished to purchase a supermarket in Rathmore. The plaintiffs had no objection to their withdrawal, because at that time no renovations had been carried out to the Cork property and Mr. O Siodhachain said that the Cork property was now more valuable than it had been at the time of the execution of the document in April 1999.
Despite the fact that the original transaction was now at an end as far as Mr. O'Mahony was concerned, he nonetheless went to see his solicitor, Terence Casey, in January or February 2000 to get him to draw up a contract for the sale of the farm at Ballybeg to the plaintiffs for the sum of £214,000. He told the Court he did not inform Mr. Casey about the document which had been executed in April 1999. However, at another point in his evidence he stated that he may have mentioned the April 1999 document before December of that year when Mr. Casey asked for details of the title to the Sundays Well property. In any event, the second contract fell through when Mr. Casey advised against proceeding further.
In the year 2000, Mr. O'Mahony stated that he and his wife were keen to purchase a supermarket premises in Rathmore. They were still willing to sell to the plaintiffs, who kept promising they would come up with the money. They were dealing with Anglo Irish Bank in relation to the financial arrangements for the acquisition in Rathmore. He borrowed 220% of the purchase price of £260,000 for the property. This involved monthly repayments to the bank of £5,000 - £6,000 which was a huge financial burden for them. It was at this time that the third contract came into being. Mr. O'Mahony accepted that before it was drawn up he and his wife had first asked the plaintiffs for a letter of intent to purchase the farm at Ballybeg in the hope that the letter might be sufficient to persuade some financial institution to advance money. However, Anglo Irish Bank was not content to accept the letter. The third contract was then issued by Mr. Casey at the defendants suggestion. This provided for an additional £6,000 to the purchase price which, according to Mr. O'Mahony, was to reflect the increase in value in the farm, and had nothing to do with rent for use or occupation, as was suggested to him by Mrs. Herron. He denied that he had signed or executed this document, or that it was used by way of collateral or security for the Anglo Irish advance. Mr. O'Mahony stated that, apart from the supermarket title itself, various sites on his farm had been offered as collateral to Anglo Irish. The purchase of the supermarket and the move to Rathmore took place in November 2000.
Mr. O'Mahony said he was aware that in March 2001 the plaintiffs had gone directly to their solicitor with a view to extending the closing date on the third contract to the end of May. However, the problem was the plaintiffs were never able to come up with the necessary moneys to close. When the third contract came back with a deposit of only £100, Mr. Casey would not accept that they should proceed.
Mr. O'Mahony was also cross examined by Mr. O Siodhachain who suggested that Mr. O'Mahony had a great deal of experience in assessing building projects and dealing with tradesmen and other business people. Mr. O'Mahony agreed. Mr. O Siodhachain suggested that Mr. O'Mahony was perhaps not as incompetent or helpless as he had made out before the Court.
Geraldine O'Mahony told the Court that from the time of the first meeting with the plaintiffs that the plaintiffs virtually "lived with them" in Gneeveguilla. Mr. Ó Siodhachain was interested in buying the dwelling house on the farm and had all sorts of plans for extensions to the house which would accommodate his published works and legal cases. She described in some detail the months which led up to the all night meeting in April, 1999. In the talks which took place between the parties, Mr. O Siodhachain gave her to understand that she was been manipulated by her husband and that she had no control in the family unit. He also came up with the idea that Sean her husband should go for counselling. There was a first counsellor and then Dr. Kinsch, both of whom were nominated by Mr. O Siodhachain. She was asked if she had told Mr. O Siodhachain that Dr. Kinsch had advised her husband to "grow up ". Mrs. O'Mahony stated that the advice given to her by Dr. Kinch was that her husband should side more with his wife, even though he was an only son. She added that Dr. Kinsch had also advised that the O'Mahonys should altogether eliminate the plaintiffs from their lives.
She told the court that Mr. O Siodhachain had advised her to, "wake herself up ". She said that Mr. O Siodhachain advised her that both he and Mrs. Herron had come into their lives as "a sign from God" that they were there to help them. Mr. O Siodhachain led her to believe that if she did as he urged, everything would be fine in their lives. She believed everything he said and the extent to which Mr. O Siodhachain's advice was followed caused a rift between her and her husband which was a mistake she would regret for the rest of her life. Mr. O Siodhachain pressed the witness about the visit paid by Dr. Kinch to the O'Mahony family home. Mrs. O'Mahony stated that the plaintiffs had in advance listed questions for her to put to Dr. Kinch about her husband, but denied the suggestion that, in the aftermath, of the visit, she told Mr. O Siodhachain that her husband had been left with "no cover" and would have to do whatever was suggested of him at that stage.
Both plaintiffs challenged Mrs. O'Mahony on her assertion that they virtually "lived" with the O'Mahonys. It was put to the witness that Mr. O Siodhachain and Mrs. Herron were either in Dublin for litigation purposes or in Donegal during the months in question between the auction and the signing up of the first contract in April, 1999. It was also put to the witness that Mr. O Siodhachain was busy during these months in political activity on behalf of Martin Ferris of Sinn Fein in Kerry. Mrs. O'Mahony accepted that the plaintiffs were actively involved in these different ways, but they still found lots of time to be calling on the O'Mahonys. She gave an example of how this might operate. On occasions where Mr. O Siodhachain might be in Dublin for one of his court cases, he could still call to the shop later on the same day. He often came with stories of court cases which he felt were designed to put the fear of the law into herself and her husband so that they would be afraid to such a degree that they could never stand up in court against the plaintiffs. She told the Court that Mr. O Siodhachain claimed to her that he could control the Court process by getting cases adjourned again and again and that he could "put a judge in his place ". As his cases were so often adjourned in this way, he could be back in Mallow by train in the afternoon, following which he would turn up at the defendants home.
In relation to the first contract, Mrs. O'Mahony recalled a particular evening in April 1999 when the all night discussions took place. On this occasion, the plaintiffs arrived without prior arrangement and were very business-like and brisk. Contracts were produced, she said, "out of the blue,". Although there had been much talk of selling the farm, neither she or her husband were ready for this and both stated that they needed their solicitors advice and that they would not sign without it. However, the discussions went on all night and the contracts were eventually signed, as far as she was concerned, at 6 o'clock on Sunday morning. Again, as far as Mrs. O'Mahony was concerned, the contracts, whether in draft or typewritten form were not left with herself or her husband for even one day.
She told the Court that later that year, following a consultation with their accountant in Killarney, the O'Mahonys decided not to buy the property in Sundays Well. She continued to hope that the plaintiffs would come up with the necessary funds to buy the farm at Ballybeg by selling Sundays Well themselves. In the meantime, the plaintiffs kept coming up with new plans and projects for the O'Mahonys as suitable investment vehicles for the proceeds of any sale. Some of these plans and projections were drawn up by way of gift, others she paid for at £200 a time. At one point, she said, Mr. O Siodhachain wanted 1% of the overall figure if moneys were advanced from the bank in respect of the supermarket project at Rathmore.
In relation to the second contract, Mrs. O'Mahony stated she had already given cash to Mrs. Herron, out of which she believed the £1,000 deposit was paid. She had advanced moneys to Mrs. Herron, because she believed the plaintiffs did not have any money at that particular point in time.
When the opportunity to buy the supermarket in Rathmore came up in 2000, she was still of the view that she would give the plaintiffs a chance to come up with the money to buy the farm at Ballybeg. This was the reason why the third contract was sent out in October 2000. At this point, Mrs. O'Mahony told the Court, that she and her husband were desperate for money, that they were being pressed by suppliers and banks, all calling for payment.
Asked why she would give £1,000 towards a deposit to purchase her own property, Mrs. O'Mahony stated that in fact over the term of her acquaintance with Mrs. Herron between 1998 - 2000, she had in fact given to Mrs. Herron sums of money amounting to about £30,000.
Despite the collapse of the second contract, Mrs. O'Mahony told the court she still wanted to give the plaintiffs a chance to come up with the money even though she had begun to distance herself from the plaintiffs because of her worries about their difficulty in completing the purchase. She accepted the third contract came into being because Anglo Irish Bank would not accept a letter of intent to purchase the farmhouse from the plaintiffs. The bank required a signed contract. She did not recall any discussion about the amount of the deposit on this occasion. Her belief was that the contract specified a 10% deposit, something around £22,000. She denied that she had agreed that a deposit of £100 would suffice. She equally confirmed that she did not sign the third contract, that Mr. Casey would not permit it. This document was never produced or offered to Anglo Irish Bank by way of security. Instead, other sites from the O'Mahony farm were provided, along with the title deeds to the supermarket premises in Rathmore, as security for the loan which was advanced. Mrs. O'Mahony further stated that she had informed Mrs. Herron that the third contract had not in fact been signed by the O'Mahonys, although she kept hoping the plaintiffs might find the money to complete the transaction. Mr. O Siodhachain had told her they hoped to get it from England. However, from the time they moved to Rathmore in November, her husband had been pressing Mr. O Siodhachain for the purchase moneys all to no avail. When the third contract fell through, Mr. Casey was only then informed about the document executed in April 1999.
It was put to Mrs. O'Mahony that the ejectment proceedings only began when Mr. O Siodhachain wrote a letter threatening legal proceedings to injunct her husband from threatening behaviour and conduct. The witness disagreed, although confirming they had received such a letter. She did not accept that her husband regularly fought with tradesmen and staff in their supermarket, or that he had a problem dealing with people. She accepted the suggestion put to her that her husband was not intellectually incapacitated in anyway.
Mr. Casey told the Court that he was the defendants solicitor. Some weeks after the auction he heard that people wanted to buy the farmhouse. In February 2000 he was told by the O'Mahonys to draw up a contract for sale. He was advised at that time that the purchasers might not be able to pay the full deposit, so when drawing up the contract, he inserted the purchase price of £214,000 but left the amount of the deposit blank.
The contracts came back with a draft for £1,000 from the plaintiff's solicitor Mr. Enright. Because there was a six month closing date and because the deposit was so small, he felt it was very unwise for the O'Mahonys to enter into contracts and so advised them. They took that advice. He later received a letter from the plaintiff's solicitor stating that his clients were not now entering contracts and to return the deposit which he did.
He had a number of calls from the O'Mahonys saying that the plaintiffs were still keen on buying and had a property in Cork to sell. Through his clients, he passed on request for inspection of the title to the Cork property. He himself was sceptical that the plaintiffs had a property to sell. He was never shown or furnished with the title to the Cork property.
He was asked in October 2000 by Geraldine O'Mahony to draw up a further contract, that Mrs. O'Mahony believed that the property in Cork could be sold and so they wanted to go ahead. He was aware that the O'Mahonys were under pressure for money having just bought the premises in Rathmore, a transaction in which he was involved as their solicitor.
He drew up this further contract, which had a purchase price of £220,000 and 10% deposit.
He later received a telephone call from the plaintiff's solicitor saying that the deposit was too high and asking if it could it be reduced. He said it could within reason. The contracts came back in amended form with a draft for £100. He called the clients into the office and told them he could not have it on his conscience to allow them enter into these contracts. Mrs. O'Mahony was keen to proceed. He said he would not act. At this point, Mrs. O'Mahony realised how serious the situation was, so they left his office without signing and never did sign. The contracts he said, never left his office, nor were they ever used as security for financial loans.
This occurred in early March.
Very shortly afterwards, the plaintiffs called to his office without appointment. Mr. O'Siodhachain wanted an "off the record" discussion. The plaintiffs wanted an extension of the closing date from the 15th of March, 2001 for one month, as they believed they could sell the Cork property. He asked if they had a purchaser. They had not. He said that if the property could be sold within two months he would ask the O'Mahonys for an extension.
He then got a letter from the plaintiff's solicitor, Mr. Enright, looking for the extension. However, the letter was not reflective of the conversation he had had in the office with the plaintiffs in that it touched on matters relating to planning permission for the Sunday's Well property which he had never discussed with Mr. Enright. He called the O'Mahonys in for a meeting and told them that he was suspicious as to whether or not the plaintiffs were making any effort to sell Cork.
In the course of this discussion he learned that his clients had entered some sort of arrangement and signed some document in April, 1999. He was completely unaware of this document until then. As soon as he saw it, he advised his clients to seek possession.
Cross examined as to whether the third contract was used as security for the loan obtained from Anglo Irish, Mr. Casey produced a letter from Anglo Irish Bank setting out the terms for the proposed advance. Mrs. Herron objected that this document had not been discovered. The Court then indicated that this was an appropriate juncture to deal with the Motion for further and better discovery which had been adjourned from the Master's Court to the present hearing. Having heard submissions from both sides, the Court determined that the plaintiffs were entitled to further and better discovery such as would include production of this particular document. All other reliefs sought in the adjourned Motion for further and better discovery were refused.
He was asked about the meeting which had taken place in his office in March, 2001 attended by the plaintiffs. He was asked if he agreed that the plaintiffs offered to waive their entitlement to enforce their claim to the forty acre farm if they got the farmhouse and yard. Mr. Casey agreed that this suggestion had been made. He further agreed that he had not relayed this information back to its clients because of the confidential nature of the discussion. He had no authority, he said, to vary anything that might have been stated in the contract document.
He was asked if he had returned the £100 deposit and if not, why not? Mr. Casey replied that the draft in question remained uncashed on the file. He was asked if he had any recollection of the lease arrangement being discussed at this particular meeting and said he did not.
He did not think the O'Mahonys had kept the details of the first contract purposely from him. They told him when they did eventually produce it, that they had been told by the plaintiffs that it was "not worth the paper it was written on".
He accepted that he had not addressed the queries about the title to the Cork premises to the plaintiffs or their solicitor. His concerns had been channelled through the O'Mahonys. His concerns first arose at the time of the second contract, not because of the disclosure of the April, 1999 document of which he then knew nothing, but because his clients kept telling him that the plaintiffs intended closing the sale out of the proceeds of sale of the property on Sundays Well. He wanted to know about the Cork property and subsequently found out that Cork Corporation had the title deeds. In searches which he made in May, 2001 he discovered there were three judgment mortgages affecting the property. The first of these was entered on the 21st of March, 1997 in proceedings between N.I.B. and Patricia Herron in the sum of £2,672. The second was entered on the 25lh of April, 2000 in proceedings between A.I.B. and Patricia Herron in the sum of £9,100 and the third was entered or registered on the 26th of May, 2000 in proceedings again involving A.I.B. and Mrs. Herron, this time in the sum of £20,947. All included in addition sums for costs. The three judgment mortgages were registered on foot of judgments obtained against Mrs. Herron, the first in October, 1996 and the other two in November, 1999.
Mr. Casey was asked about the notice to quit and the procedures that had taken place at that time. As far as Mr. Casey was concerned, the notice to quit was served first, and then followed by a demand for possession. Asked why the notice the quit refers to a weekly tenancy, Mr. Casey said it was impossible to know from the first contract document what the basis of the plaintiff's occupation of the farmhouse was, other than as permissive occupant. He assumed it was a week to week type of arrangement. He stressed that sites owned by the O'Mahonys were never put up as collateral for the sums advanced by Anglo Irish Bank, but that some of these sites were being sold to reduce the indebtness of the O'Mahonys to Anglo Irish Bank.
He could not recall whether at the meeting the plaintiffs had at one point offered to give up the house at Ballybeg within a reasonable period.
Mr. O Siodhachain gave evidence to the effect that he became aware of the possible sale of this farm from talk in the locality. On the night of the auction, he and Mrs. Herron went to the farmhouse and were shown over the farmhouse and yard by Sean O'Mahony's father. He indicated he might be interested in the dwelling house and some of the old buildings. Some days later the plaintiffs met with the O'Mahonys. He only visited the farm at Ballybeg two or three times, although they did call to the defendants at their shop in Gneeveguilla. He insisted that a great deal of time was spent by both plaintiffs in Donegal and Dublin over the following months and he rejected suggestions that the plaintiffs virtually lived with the defendants.
He accepted a friendship and relationship did develop between the plaintiffs and the defendants. As part of the work he did with Mrs. Herron, he would get involved in counselling clients. In this instance, both he and Mrs. Herron had recognised there were grave problems affecting the O'Mahonys. Both were complaining about interference by in-laws. Mr. O'Mahony in particular was called to account for virtually everything he did by his parents and was being treated like a 15 year old. He formed the view that Sean's behaviour was dysfunctional and immature and that he should see a counsellor. He recommended Dr. Kinsch to whom he had referred a number of other clients. He also recommended self help books to Geraldine and gave her guidance in relation to a course in practical philosophy, Which she pursued as a result. He told Mr. Cross that the various interventions he had made in the O'Mahony's lives were made for altruistic reasons. He accepted he had supplied the name of an accountancy firm to the O'Mahonys and also a particular branch of the Bank of Ireland. He also had advised and arranged for Mr. O'Mahony to see a particular Harley Street specialist in relation to his visual difficulties. He accepted he had also advised the O'Mahonys on how to furnish their home at Gneegevuilla so as to make the best possible impression on any representative of a lending institution that might call out to discuss business with the O'Mahonys.
He accepted that the plaintiffs had prepared background paper work, including financial projections, for a number of projects which they had discussed with the defendants. One night before Christmas 1998 the O'Mahonys came to their home in Scartaglen to discuss a particular project or property. On that particular evening, Mr. O Siodhachain by way of example and illustration as to how an investment property could yield profit, showed to Mr. O'Mahony some projections he had prepared in relation to Mrs. Herron's house in Sunday's Well to give the defendants some idea of what might be necessary when approaching a lending institution seeking finance. Some time later he found out that Sean O'Mahony had gone to Cork to look at the property from the outside and was very enthusiastic about it Mrs. O'Mahony did likewise and both O'Mahonys came to the plaintiffs with a proposition that they would buy the Sunday's Well property if the plaintiffs bought the farm.
In the months leading up to April 1999 discussions began on a back to back arrangement. These discussions took many weeks and at various times he wanted to be finished with the whole discussion because of Mr. O'Mahony's attitude which kept stringing things out for weeks. Mr. Cross read to him the contents of a letter dated 10th April 1999, suggesting it contained a threat that unless the purchase of Ballybeg was completed within 14 days that the O'Mahonys would be held responsible for rented accommodation elsewhere should the plaintiffs move out of Scartaglen, together with other expenses which Mr. O Siodhachain might incur. Mr. O Siodhachain stated that Mrs. O'Mahony had asked for the particular letter so as to get her husband's parents out of the dwelling house. They had dug in their heels after the auction and were now demanding a new house. Also, he said, Mrs. O'Mahony was getting hate mail locally. The letter was designed to bring that to an end, because it was something she could show around to her relatives to highlight the difficulty that the O'Mahonys would be in unless the deal went ahead. The only pressure applied arose from the fact that the plaintiffs had to vacate the property at Scartaglen.
Mr. O Siodhachain stated there were at least three longhand drafts of the first contract before the all night meeting at the end of April 1999. On that night, the plaintiffs brought the final draft in longhand with them. He told Mr. O'Mahony at the outset that things were going to be finalised that night or the matter would go no further. He agreed that discussions went on all night because they were discussing matters which were not dealt with in the document, such as plant and machinery and how various EC land schemes would affect the property.
The reference to a lease had been included in the draft and in the discussions, because he was aware from other work he had done that no bank or finance house would give money or grant a loan except on a 15 year lease. He denied that he ever said the document was not worth the paper it was written on, although his own solicitor, Mr. Enright, had told him later that he was not very happy with it.
Some days later a typed version of the document was presented to the O'Mahonys. Sean O'Mahony wanted to change the sum for renovations to the Cork property from £75,000 to £95,000. Mr. O Siodhachain agreed and offered this as the reason why the written amendment appears on the typed version of the document. The document was then left with the O'Mahonys for a few days. Mr. O Siodhachain told the Court that the plaintiffs urged the O'Mahonys to show it to Mr. Casey, but they did not want that. They then suggested to Mr. O'Mahony that he take it to some other solicitor. He told the Court he in fact mentioned the solicitor of a particular trader with whom Mr. O'Mahony had had business dealings with in Portlaoise. He told Mr. Cross, however, that at the time of signing up of the first contract, which he said took place on the 28th of April, he had not checked to see if the O'Mahonys had taken any legal advice in the interim from either Mr. Casey or any other solicitor.
Mr. Cross asked what the purpose of the 15 year lease would be in the context of a sale of the property. Mr. O Siodhachain stated that the first contract was "facilitatory" in the sense that if anything went wrong, both of the parties would be protected by the leases. Mr. O Siodhachain gave as an example the possibility of a car accident happening which might affect one or more of the parties. He also felt it could constitute a form of security to raise funds. It was not written in for tax reasons of any sort.
In November 1999 the O'Mahonys asked to be released from the Sundays Well transaction, something which he and Mrs. Herron were quite willing to do. In the discussions which then took place, a sum was agreed for rent up to the probable closing date. Mr. O Siodhachain stated that this was a round figure to cover the time from the commencement of occupation of the plaintiffs at Ballybeg until the loan which would enable them complete the purchase came through. Apart from this " variation, Mr. O Siodhachain stated that the O'Mahonys were willing to confirm all the other arrangements in relation to the farm at Bailybeg insofar as the plaintiffs were concerned.
Mr. O Siodhachain stated he was aware the O'Mahonys needed money for their business plans, including the project at Rathmore in respect of which he had helped them with financial projections. Insofar as closing the farm deal with the O'Mahonys was concerned, Mr. O Siodhachain stated that he and Mrs. Herron tried to get funds from lending institutions. However, as neither of them had any conventional income, they could not raise this finance in Ireland. They therefore tried to secure the loan from a company in the UK which specialised in asset based loans. They were for all practical purposes approved for such an advance in 2000, but the foot and mouth epidemic put paid to those arrangements. At a later stage the application for funding from the UK was reactivated, but although the plaintiffs were approved in principle for a loan, the lending institution declined to advance funds in Ireland.
Insofar as the third contract was concerned, Mr. O Siodhachain stated that Geraldine O'Mahony was quite desperate because of financial pressure. She was anxious to have a contract executed for the purpose of obtaining finance. He had asked her if £100 was a sufficient deposit if the plaintiffs assisted in the execution of a third contract and she agreed. Even her own solicitor saw this deposit figure as ludicrous. Mr. O Siodhachain stated that the deposit figure was always intended to be £100 in the third contract, and not 10%, or £22,000, which insertion was amended by his solicitor.
After they executed the third contract, they kept phoning Mr. Enright to see if signed contracts had been returned. Mr. Enright kept saying that they had not come in yet.
Mr. O Siodhachain stated that the plaintiffs were concerned about the financial predicament which were the O'Mahonys were in. The plaintiffs felt they might be able to help the O'Mahonys by releasing the farm portion of the lands from the contract so that the O'Mahonys could in turn sell it and reduce their financial overheads. Against that background, he rang Mr. Casey and asked if he would meet with them, a proposal to which Mr. Casey agreed.
At the meeting, Mr. Casey said that the offer to not purchase the farm was really of no use, that no one would now buy the farm in the middle of a foot and mouth crisis. Mr.O Siodhachain stated that they also offered to vacate the dwelling house within a reasonable time. They also discussed the possible extension of the closing date in the contract, and Mr. O Siodhachain asked for one month beyond the 15th March deadline. Mr. Casey stated that more time would be required and asked if the plaintiffs would have their own solicitors write a letter to him seeking the extension in question.
In 2000, Mr. O Siodhachain stated that Mr. O'Mahony's attitude changed and he became very two faced. Mr. O Siodhachain therefore stopped calling to Rathmore. After March 2001 Mr. O'Mahony resorted to threatening behaviour and was involved in a number of incidents. He kept opening and leaving open the plaintiffs gates and went through various outhouses and sheds without permission. He brought out the auction sign which had been put away and generally made a nuisance of himself with the plaintiffs. It was against that background that Mr. O Siodhachain had written a letter in early April threatening legal proceedings to injunct Sean O'Mahony from these activities.
Mr. O Siodhachain told Mr. Cross that he didn't really know in any legal sense what a lease was. He accepted there was no mention of any rent in the first contract, because at that time the O'Mahonys were going to purchase the Cork property in exactly the same way as the plaintiffs were buying the farm at Ballybeg. Once the back to back arrangements ceased to exist, Mr. O Siodhachain accepted that some rent would have to be paid in respect of their occupation of the farm. He could not say why this sum for rent if agreed and identified as such was not mentioned or included in the second contract or described as such in the third contract
Mrs. Herron told the Court that from August 1998 onwards she spent a great deal of time in Donegal, Dublin and Cork. She had three or four cases in progress in Dublin for people she was helping. She also had a Supreme Court appeal of her own in preparation and in October was doing a law course in UCC. In addition, her son was in hospital in March 1999 in Cork and required daily visits from her.
She accepted, however, that she would call on average about twice a week while passing the shop at Gneegevuilla and in this way became very friendly with Mrs. O'Mahony. She confirmed that the O'Mahonys had come with them to Donegal in October 1998 for several days when they looked at a range of properties. At a later point they also looked at a property in Banna, Co. Kerry.
She developed a friendship with Geraldine O'Mahony and noticed on one occasion that she was very upset while Mrs. Herron was present in the house. Mrs. Herron followed Geraldine into her kitchen where Geraldine confided certain matters in her. After that she would also confide in Geraldine and they became friends and remained so until March, 2001. Mrs. Herron told the Court that when the plaintiffs first met the O'Mahonys, it was her impression that they were an entirely dysfunctional family. She did not accept that pressure had been put on the O'Mahonys to sign the first document. The only pressure lay in the fact that the plaintiffs had to quickly find somewhere else to live as their stay in Scartaglen was ending. Mrs. Herron felt they had been strung along for weeks by the O'Mahonys. The purpose of the letter dated 10lh April 1999 was to deal with a situation where the O'Mahonys parents would not move out of Ballybeg. The O'Mahonys had failed to spell out clearly to Sean O'Mahony's parents that they had to go.
Mrs. Herron insisted that the parties worked from a longhand draft on the 23rd of April during the all night discussion. Thereafter she prepared the typed document from the longhand draft on the 26th and gave it to the O'Mahonys that evening. Everyone signed the document on the 28lh. She had no recollection that Sean O'Mahony changed the figure for renovations from £75,000 to £95,000 on the typed document
On the night of the long discussion, Geraldine and herself had sat away from the two men who were by the fireside. Mr. O'Mahony nit picked through every single item in the agreement. In the end, Mrs. O'Mahony told her husband to give it a rest or conclude it.
She accepted that she put in the preamble by way of addition to the text contained in the draft when preparing the first contract. At that time she knew nothing about land law or property law. It was only when pursuing her LLB course that she learned anything about leases or the Statute of Frauds or such matters.
Mr. Cross pressed Mrs. Herron as to whether or not the question of legal advice had arisen prior to the execution of the first document. Mrs. Herron stated that they had recommended to the O'Mahonys that they get legal advice, but the O'Mahonys did not want to go to Mr. Casey because he was acting for the O'Mahony parents as well. The plaintiffs had suggested that the O'Mahonys go to someone else. However, when the document was signed up on the 28th, Mrs. Herron accepted she did not ask if the O'Mahonys had sought or received any independent legal advice in the meantime.
In relation to the second contract, Mrs. Herron was adamant that the deposit was paid out of her own moneys and produced a draft for the deposit drawn on her own bank, TSB in Killarney. She denied that the money in question had been given to her by Geraldine O'Mahony. She did become aware, when Mr. Casey would not allow the plaintiffs sign the second contract, that Mr. Casey wanted to see the title deeds to her Cork property. She contacted Cork Corporation who had a mortgage over the property, but it took her some considerable time to get the title documents and as she never got a formal request for same from Mr. Casey she decided not to hand them over. When the O'Mahonys pulled out of the Cork transaction in November in 1999, the plaintiffs then offered to pay for the use and occupation of Ballybeg from the time they had moved in up to the probable closing date for the transaction. A sum of £6,000 was suggested by Mr. O Siodhachain and accepted by the O'Mahonys. Other all aspects of the arrangements concluded in April 1999 were confirmed.
When the second contract failed, Mrs. Herron stated that the plaintiffs continued trying to raise funds to complete the purchase of Ballybeg. She confirmed the difficulties as outlined by Mr. O Siodhachain.
In relation to the third contract, Mrs. Herron stated that Geraldine came to her in September 2000 saying she needed a letter of intent to purchase Ballybeg, which the plaintiffs gave her. She later stated that the lending institution was not satisfied with the letter of intent, that she needed a signed contract. Mrs. Herron explained that the plaintiffs did not at that time have the necessary 10% deposit, whereupon Geraldine O'Mahony stated that £100 would suffice and that she would make her solicitor take it. At no stage were the plaintiffs ever told that the O'Mahonys had not signed this third contract.
From 2000 onwards, Sean O'Mahony's attitude towards the plaintiffs changed, although she remained friendly with Geraldine, often helping her in the supermarket following the O'Mahonys move to Rathmore in November 2000. In the new year of 2001, Sean O'Mahony became markedly hostile. He would make snide and nasty remarks and kept asking if the plaintiffs had the money to close the purchase, stating that the closing date was approaching. Geraldine had told Mrs. Herron that she was under terrible financial pressure.
The plaintiffs called to Mr. Casey's office in March 2001 in circumstances already outlined by Mr. O Siodhachain. They told Mr. Casey they wanted to help the O'Mahonys. Mrs. Herron said they offered to give up the 40 acres of land and buy only the farmhouse. Mr. Casey said no one would now buy the farm during the foot and mouth crisis. They also offered to give up the house and move out altogether if given reasonable time. Mrs. Herron said that the plaintiffs told Mr. Casey they were awaiting funds, whereupon Mr. Casey suggested extending the closing date. Mr. Casey suggested a longer period than that mentioned by the plaintiffs and suggested that the plaintiffs have their solicitor write to him officially, seeking an appropriate extension. Such a letter was sent by their solicitor to Mr. Casey on the 7th of March 2001.
The 15lh of March came and went Mrs Herron stated the plaintiffs assumed the extension was operating. Mr. O'Mahony continued to be nasty and unpleasant and when he put the FOR SALE sign, which had been in a shed, in a position where it could be seen outside the farmhouse in Ballybeg by passing traffic, they caused a letter to be sent in early April threatening proceedings against him. Notice to Quit was then served on them.
At a late stage in her evidence, Mr. Cross asked Mrs. Herron to put some sort of figure on the moneys which Geraldine O'Mahony had advanced to her during the term of their acquaintance. Mrs. Herron initially stated that she had received loans from Geraldine O'Mahony amounting to somewhere between £15,000 - £30,000 in total. Mr. Cross then put to Mrs. Herron a letter which she had written in May, 2000 acknowledging that as of that date a sum of £35,000 was due in respect of loans advanced by Geraldine O'Mahony to her. Mrs. Herron accepted that this was so and acknowledged her obligation to pay the sum back to Mrs. O'Mahony, whom she described as a very generous person.
Submissions of the Parties
On behalf of the defendants, Mr. Cross contended that the document dated 28th April 1999 was not effective to create a valid lease. Section 4 of Deasy's Act required that any contract to create the relation of landlord and tenant for any definite period of time, not being from year to year or any lesser period, must be evidenced by note in writing. While the document was executed by all parties, clauses 11 and 12 were those provisions relied upon by the plaintiffs to suggest that a lease had been created. No other documents of any kind whatsoever had been produced to amplify or vary those terms which conspicuously failed to make provision for rent of any kind. Section 3 of Deasy's Act specifically provided that the relationship of landlord and tenant is founded on contract made between the parties in all cases where there is an agreement by one party to hold land from another in consideration of rent.
While the plaintiffs had argued that upon their release from the Sundays Well agreement, the original agreement of April 1999 had been varied so as to provide for a rent of £6,000, there was no note or memorandum of this amended agreement, if any.
The document in any event was clear that its effect would come to an end on the 8th of December 1999. It was at all times obvious that the "leases " would remain in force only until superseded by the contracts as set out in the preamble which had to be signed before a specified date, failing which the whole arrangement came to an end. Alternatively, he submitted, the document was self contradictory, and as it was prepared by the plaintiffs, it should be construed against them under the contra preferentem rule. Alternatively, there had been a total failure of consideration in respect of the April 1999 document. The plaintiffs had paid no money of any kind to the defendants. The document relied upon failed to specify any rent for any purported lease.
Secondly, it was submitted that if the document of April 1999 was effective to create some sort of valid lease, it was procured by undue influence or other circumstances of oppression and unfairness which demanded that the Court should set it aside.
Both parties in their submissions were in agreement as to the legal requirements necessary for the court to intervene on this basis. Firstly, it could be established by the claimant that the alleged wrongdoer exerted actual undue influence on the complainant to enter into the particular transaction being impugned. Alternatively, undue influence could be presumed where there was a relationship of trust and confidence between the complainant and wrongdoer of such a nature that it was fair to presume that the wrongdoer abused the relationship in procuring the complainant to enter into the impugned transaction. Once a confidential relationship had been established by evidence, the burden shifted to an alleged wrongdoer to prove that the complainant entered into the impugned transaction freely, for example by showing that the complainant had independent legal advice.
Certain relationships, such as solicitor inclined, raised the presumption as a matter of law. Even where the relationship did not fall into that category, the complainant could still establish the de facto existence of a relationship under which the complainant generally reposed trust and confidence in the wrongdoer, whereupon the existence of the relationship raised the presumption of undue influence. This formulation of the test had been approved by the Supreme Court in Bank of Nova Scotia-v-Hoean [1996] 3 IR 239, 246.
Mr. Cross submitted that the plaintiffs did in fact use actual undue influence on the defendants and on that ground alone the agreement could be set aside. Alternatively, the evidence clearly showed a relationship of trust and confidence reposed by the defendants in the plaintiffs prior to the signing of the document in April 1999 and thereafter, sufficient to shift the burden to the plaintiffs to establish that the defendants entered into the agreement freely and with independent legal advice. The evidence clearly showed that the defendants did not have the benefit of independent legal advice. Further, he submitted, the plaintiffs, and in particular the second named plaintiff, demonstrated in their evidence an understanding of the law far beyond that of a lay person, and certainly beyond that of the defendants. He submitted therefore on this limb of the test, that the plaintiffs had failed to discharge the onus of proof that the agreement had been entered voluntarily.
Mr. Cross further submitted that the agreement was manifestly improvident. The plaintiffs are currently living rent free in the defendants property. They have not sought to enforce any contract for sale, but rather their case is based on a contention that they enjoy a lease under which they are permitted to live at no cost in the plaintiffs property for 15 years.
Finally, in relation to the third contract, Mr. Cross submitted that there was no evidence that this document was ever executed by the defendants. Both defendants denied having executed the document, and this evidence was confirmed by the evidence of Mr. Terence Casey, the defendants solicitor. Furthermore, it was clear from the evidence that contrary to the suspicions held by the plaintiffs, the defendants did not rely upon any third contract, executed or otherwise, to raise finance from Anglo Irish Bank for the Rathmore supermarket.
If the various submissions of the defendants were accepted, Mr. Cross submitted that the court was clearly entitled to make an order for possession in the defendants favour.
Mrs. Herron submitted that there was the necessary note in writing sufficient to satisfy the requirement of Section 4 of Deasy's Act. The original agreement made in April 1999, was varied orally in November 1999 when the defendants withdrew from the purchase of the plaintiffs property in Sunday's Well. The variations were to the effect that the plaintiffs would remain in occupation of the defendants property under the 15 year lease, pending their purchase of the property to which the plaintiffs remained committed. The plaintiffs would pay to the defendants the sum of £6,000 for their occupation of the premises, such sum to be paid when the plaintiffs succeeded in selling their own property and closed the purchase of the defendants property.
Alternatively, if the formalities of Deasy's Act or other legal requirements had not been complied with, the plaintiffs were entitled to an equitable lease under the rule in Walsh -v- Lonsdale [1882] 21 Ch D9. Alternatively, the plaintiffs were entitled to an equitable lease under and by virtue of the doctrine of part performance.
It was submitted that the alteration in the third contract of the purchase price from £214,000 to £220,000 was sufficient to satisfy the statutory requirements as to written form. Par 21 of Mrs. Herron's written submissions sets out the various grounds relied upon in support of the contention that the amended leasing agreement was fully and adequately supported by part performance.
Mrs. Herron further invited the court not to hold that the April 1999 document created a licence. At par 28 of her submissions she refers to different types of licence, suggesting that the instant arrangements fall into none of the recognised categories. Further, by issuing a notice to quit and ejectment proceedings, the defendants implicitly conceded that a tenancy had been created.
Mrs. Herron's submission on undue influence, though considerably more detailed than that submitted by Mr. Cross, did not differ as to the essential legal requirements. She submitted that there was no evidence of actual undue influence. She further submitted that there was no exclusive relationship between the parties resulting in the defendants placing trust in the plaintiffs so as to give rise to a presumption of undue influence. Alternatively, Mrs. Herron submitted, the evidence showed that the transaction was a free exercise of the defendants will and, in any event, no substantial benefit was obtained by the plaintiffs under the transaction. (Carroll -y- Carroll [1998] 2ILRM 218). Alternatively, the defendants had forfeited any right to relief by delay and approbation.
In relation to the third contract, Mrs. Herron submitted that there was a concluded oral contract between the parties to sell the property to the plaintiffs in October 2000. It was accepted that the contract to purchase sent to the plaintiffs solicitor contained a clause that no contract would come into existence unless and until the contract to purchase was signed by the defendants. However, the defendants intention to sell their property to the plaintiffs had been their intention since April 1999 and the decision to engage professionals to draw up the contract to purchase was a legal requirement and formality which was not made with the intention of changing the terms of the contract in any way. It had been the plaintiffs belief that the defendants had executed this third contract, but even if they hadn't, there were sufficient acts of part performance apparent from the evidence to enable the court to hold that it was effective and binding.
Conclusions
The Court has formed the most definite view in this case that the relationship between the plaintiffs and the defendants was at no stage a relationship between equals. On the contrary, the evidence clearly establishes that when the plaintiffs first met the defendants in August 1998, the plaintiffs were an experienced duo specialising in paralegal and litigation work, both on behalf of others and on their own account Mr. O Siodhachain was a well known figure in the locality, both through his political, paralegal work and writings. Mrs. Herron, as both her personal and academic history and indeed her conduct of this case shows, is a woman with not only considerable experience of the law, but also is possessed of sharp mental skills and significant experience in contesting problems over a wide spectrum of issues.
By contrast, Sean O'Mahony left school at 16 years of age and has limited educational achievements. He is also to some degree handicapped as a result of injuries sustained in 1983 and visual difficulties which have left him with impaired eyesight The evidence in the case also satisfied me that Sean O'Mahony is a person of considerable immaturity who, in 1998, had no clear or well thought out concept for his future life and that of his family. He was also clearly very much under the influence of his parents and acted, in the words of the plaintiffs, like a 15 year old. Throughout the hearing, the court had the opportunity of observing the demeanour of all the witnesses both in direct and cross examination. The Court witnessed the emotional collapse of Mr. O'Mahony at one point during the giving of his evidence, an event which required a short adjournment, and was ultimately left in no doubt and I do hereby find that Sean O'Mahony was at all relevant times an immature, emotionally underdeveloped and easily manipulated individual of limited intelligence. Insofar as his wife Geraldine is concerned, the evidence establishes to my satisfaction that she found the interference of her husband's parents difficult to put up with, that it caused difficulties between herself and her husband at times, that she felt isolated and vulnerable and that these difficulties were all exacerbated following the introduction of the plaintiffs into their lives.
It is not necessary for me to find a particular number of days or dates upon which the plaintiffs visited the defendants during the period August 1998 - April 1999. I am more than satisfied on the evidence and hold that over that period the plaintiffs intervened in the lives of this young couple in a manner which was totally inappropriate for persons who had in mind purchasing the defendants property. I do not accept that these interventions were, as suggested by the plaintiffs, altruistic. They were, in my view, entirely designed to mould the defendants to the plaintiffs intention which was to secure the defendants property at Ballybeg on the best possible terms. In reaching this view, I am paying particular regard to the actions of the first named defendant in advising and recommending that Sean O'Mahony consult a psychiatrist, in arranging a particular psychiatrist whom he should consult with, and in suggesting questions for Mrs. O'Mahony to discuss with Dr. Kinsch. I accept in full Mrs. O'Mahony's account of Mr. O Siodhachain behaviour during the period August 1998 - April, 1999. I further hold that Mr. O Siodhachain encouraged Mrs. O'Mahony to take steps and adopt life style behaviour with the object and intent of driving a wedge between herself and her husband. I do not say that the involvement of the plaintiffs was such as to amount to "brain washing" of the defendants or either of them, but, during the period August 1998 - April 1999, the plaintiffs infiltrated the lives of the defendants to such a degree, and from such a position of comparative strength, as to further imbalance an inequality of negotiating position between the parties which was present from the outset. In particular, I accept the defendants evidence that when they sought to have professional guidance in relation to the purchase of the Sundays Well property, that they were put off this idea by the plaintiffs. I further find and hold that at no stage up to and including the date of execution of the first document did the defendants have the benefit of independent legal advice. I further hold that on the evidence they were encouraged not to seek such advice and that the first named defendant made the representations described by the defendants as to the "facilitatory " nature of the first document and that he told them it was not worth the paper it was written on. At the time therefore of the execution of the document in April 1999,1 hold and find that there was a relationship of confidence and trust reposed by the defendants in the plaintiffs, although I will also deal with the issue of actual undue influence in this case in due course.
I will now turn to the issues.
I accept Mr. Cross' submissions in relation to the document executed in April 1999. It is quite clear that what this document envisaged was an exchange of properties by means of sale within a specified period. I am satisfied the reference to a "lease " in the document was not designed to create a lease as such but was intended rather to provide some sort of legal basis for occupation of the respective properties between the date of the document and the closing date on the 8th December 1999. It cannot in my view be regarded as a lease, because it fails to specify any rent. Further, I do not accept that this document was varied in any specific way by any agreement in November 1999 when the defendants withdrew from the Sunday's Well purchase. I find it inconceivable, having regard to the meticulous way in which Mrs. Herron fastens upon and records such matters, that such an agreement, if made, would not be reflected in the second or third contracts, or in some other documentation or correspondence between solicitors. While Mrs. O'Mahony in cross examination may have said that she believed an offer of £6,000 was at some point made in respect of rent, Sean O'Mahony stated that the £6,000 in question was an adjustment to the purchase price to reflect the increase in value of Ballybeg between the date of the original document in April 1999 and October 2000. I prefer Sean O'Mahony's evidence on this point, supported as it is by the singular absence of any other written record of some such supposed variation of the April 1999 document.
In my view the arrangements between the parties fell through completely as of December 1999, following which the plaintiffs were allowed to remain on as permissive occupants of the property against a background where both sides hoped the plaintiffs would produce the purchase moneys to complete the acquisition of the farm at Ballybeg.
I also accept that where contradictions appear in the document of April 1999, they must be construed against the plaintiffs who prepared them. The plaintiffs in evidence themselves accepted that the document should not be construed as conferring a rent free facility to the plaintiffs to live on the defendants farm for 15 years. In just the same way as the description of a tenancy arrangement as a licence cannot convert a lease into a licence, the converse seems to me to be equally true, namely, that the description under the name of a 'lease' of a licence or caretakers agreement cannot operate to convert a permissive occupant into a tenant where all the usual characteristics of a leasing agreement are absent In the instant case, there is no mention in the April 1999 document of even a single covenant, such as would characterise a lease. {Gatien Motor Co -v- Continental Oil Co. [1979] IR 406).
Nor do I accept Mrs. Herron's submissions that any deficiencies in legal form can be compensated under the equitable doctrine of part performance. The evidence overwhelmingly establishes that at no time were the plaintiffs ever in a position to complete the purchase of the Ballybeg property, nor did they either pay rent or any portion of the purchase moneys. As the evidence shows, a number of judgments have been obtained against Mrs. Herron during the period up to November 1999 which, because they were unsatisfied, led to judgments being registered against her property in Sunday's Well. She had in addition by mid 2000, borrowed £35,000 from Geraldine O'Mahony, a liability she acknowledged herself in evidence. This inability to at any stage complete the transaction does, in my view, effectively put paid to any suggestion that the doctrine of part performance can be relied upon in any way in this case. Nor in my view do the plaintiffs come to court with clean hands as my findings make clear.
The rule in Walsh -v- Lonsdale seems to me to have no application on the facts as found by me in the instant case. This doctrine was developed to provide for the enforcement of an informal lease for valuable consideration by applying the maxim "equity regards as done what ought to be done ", whereby the parties would be treated in equity as being in the same position from the beginning as if a proper formal lease had been executed. This situation usually arose where there was no adequate note or memorandum in writing of an agreement, but where there were sufficient acts of part performance to take the case out of the Statute of Frauds. However, it almost goes without saying, that the parties must have intended to create a lease, which I have found was not the fact or intention. Even if I am mistaken in this respect, the doctrine is in any event dependent upon the availability of the remedy of specific performance in the particular case, which is a matter within the discretion of the court. If the remedy is not available on the facts of the particular case, the doctrine cannot apply. I have already set out the reasons which coercively persuade the court that it should not exercise its equitable jurisdiction in favour of the plaintiffs in this particular case.
I propose to deal with the issue of undue influence, lest it be held elsewhere that the document executed in April 1999 has the effect contended for by the plaintiffs.
In my view there was actual undue influence in this case. As already mentioned, the court regards it as totally inappropriate for an intending purchaser to have interfered and intervened to such a degree, as occurred in this case, in the lives of the parties from whom it was intended to purchase a farm and property. I am satisfied from the evidence that Mr. O Siodhachain did endeavour to drive a wedge between husband and wife, so as to make Mr. O'Mahony more malleable in the terms he would seek for the sale of the family farm. I am satisfied he completely won over Geraldine O'Mahony, who seems to have followed his every advice and suggestion, to the extent of following practical philosophy courses in Killarney and collaborating with Mr. O Siodhachain in formulating questions to put to Dr. Kinsch about her husband's behaviour on the occasion when Dr. Kinsch was due to visit the family farm. It is important to note that the making of the agreement in April 1999 was preceded by a letter from Mr. O Siodhachain to the O'Mahonys threatening to make them responsible, not only for rents incurred by the plaintiffs if they could not immediately move into Ballybeg, but holding them responsible also for any other loss of income which Mr. O Siodhachain might suffer as a result. These threats must be seen in context. By this time, the plaintiffs had insinuated themselves into the lives of the defendants over a period of months and I am satisfied were regular visitors to the defendants home at Gneegevuilla. I also accept the description in evidence given by both O'Mahonys as to how the plaintiffs won them over and, in certain respects, instilled a fear into them as regards the possible consequences of non co-operation with the plaintiffs. The letter written on the 10th of April can only, in my view, be seen as the severest form of pressure on the defendants to co-operate with the wishes of the plaintiffs or face those consequences.
I am also satisfied from the evidence that on the night of the all night discussion, the plaintiffs arrived in a brisk and business-like manner, quite determined to conclude matters. There is no dispute or argument about the fact that the parties sat up all night until 6 am before agreement was reached. It is hard to imagine a less satisfactory manner of negotiating to conclusion an important event in the lives of the O'Mahonys than this. The plaintiffs were obviously aware that the defendants did not have the benefit of legal advice in relation to the matters under discussion on the night in question. I do not accept the evidence of the plaintiffs that they recommended to the defendants that they seek and obtain such advice. Instead I prefer the evidence of the defendants that they were advised not to seek legal advice, and that they were content to go along with this based on representations made by Mr. O Siodhachain that the document "was not worth the paper it was written on ".
I think it more probable that in relation to the date of signing by the parties, that the evidence given by the plaintiffs may be more accurate. In other words, I accept that the document had to have been typed up following the all night meeting, that it had to be re-presented to the defendants when that had occurred. However, it seems to me to make absolutely no difference to the issue I have to determine, given the absence of independent legal advice prior to the execution of the agreement.
I am also satisfied that this agreement was an extremely improvident one from the point of view of the defendants, as subsequent events have all too clearly demonstrated. To the extent that the lease may be considered valid, thereby creating a rent free 15 year occupation of the defendants farm by the plaintiffs, it is difficult to imagine more a catastrophic outcome from the defendants point of view. The distress of the defendants, which was all too apparent during the hearing before me, can only have been compounded as increasing financial pressures came on them from banks and other lending institutions while the plaintiffs continued to fob them off with promises of completing the purchase which never materialised. It follows from the findings I have made, that I do not need to consider the alternative basis upon which the court may intervene, namely, that of presumed undue influence. It equally follows that if I am mistaken in my assessment of the witnesses and their evidence on the issue of actual undue influence, it is still open to me to hold, and I do so hold, that the onus of disproving presumed undue influence in the context of a relationship of trust, which I find to have existed, has not been discharged in this case by the plaintiffs.
It was urged upon the court to treat the delay in moving to set aside the April 1999 document as an approbation of the arrangements put in place in consequence. However, I am quite satisfied that the defendants continued under the influence of the plaintiffs throughout 1999/2000, a situation which was compounded by the severe financial pressure which came to bear on them from October 2000 onwards. Even on the plaintiffs own evidence, the defendants were at that stage desperate for money. Nonetheless, they did not, and I so find, disclose to their own solicitor the existence of the April 1999 document until all hope was gone following the passing of the final closing date in the third contract on the 15th day of March 2001. This non-disclosure in my view was a direct result of the influence exerted on the defendants by the plaintiffs.
I turn then to the issue in relation to the third contract, i.e. the contract prepared in October, 2000.
In this regard, I accept fully the evidence of Mr. Terence Casey to the effect that this document was never signed by either of the defendants, or by him on their behalf. I also accept his evidence that this document was never used by way of collateral or security for any lending institution, and in particular, was not used for the purpose of raising finance from Anglo Irish Bank. I accept his evidence that this document never left his office and I accept fully the reasons offered by him as to why that was so. I also accept fully his evidence that he first became aware of the April 1999 document some time in March, 2001, when he called his clients into the office to discuss the situation arising when the third contract was returned with a deposit of only £100. Again, on this point as to when Mr. Casey first learned of the existence of this document, the defendants themselves gave conflicting evidence, Mrs. O'Mahony agreeing with Mr. Casey, but Mr. O'Mahony stating, mistakenly in my view, that he believed this document had been mentioned to Mr. Casey some time in November/ December, 1999. I am satisfied that any error on this point by Mr. O'Mahony arose from the lengthy period which he spent in the witness box and the manifest distress under which he laboured while giving evidence.
Accordingly, I hold against the plaintiffs on this issue also.
This brings me finally to the defendants claim for possession.
When this matter was first aired before me in October 2001,1 acceded to Mrs. Herron's request to injunct and halt the District Court ejectment proceedings on very specific conditions. Those conditions included requirements that pleadings be exchanged within specified time limits and that discovery equally take place between specified time limits, all with a view to having the case moved forward to a list to fix dates in early 2002. I expressly stated at the time that I was doing so as an exercise in case management and with a view to having all issues determined in a full plenary hearing. Such a hearing has now taken place before this court, extending over a period of 5 days, some 3 days longer than the parties indicated to the court at the outset of the hearing.
In view of my finding that the plaintiffs occupied the defendants farm at Ballybeg as permissive occupants only, that entitlement to remain in occupation terminated following the demand made for possession by the Notice to Quit. While Mrs. Herron makes the point that the Notice to Quit refers to a tenancy from week to week, Mr. Casey explained in evidence that this was inserted merely because he saw it as the most appropriate way to deal with a permissive occupancy. While a very short period only was provided to the plaintiffs to vacate the property, the fact remains that they have not done so and continue to occupy and reside in the property, paying no rent, from May 1999 up to and including the present.
In my view, the demand made was adequate to terminate the permissive occupancy and I accordingly declare that the defendants are entitled to an order for possession of their lands at Ballybeg.
While the court heard evidence that a sum of £35,000 remains due and owing by Mrs. Herron to Mrs. O'Mahony, it was accepted by Mr. Cross that this sum, although undoubtedly due, forms no part of the defendants claim in the present proceedings and I am accordingly making no order in relation to that liability.