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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O'Connor -v- O'Connor & Ors [2010] IEHC 539 (29 October 2010)
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Cite as: [2010] IEHC 539
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Judgment Title: O'Connor -v- O'Connor & Ors Neutral Citation: 2010 IEHC 539 High Court Record Number: 2008 184CA Date of Delivery: 29/10/2010 Court: High Court Composition of Court: Judgment by: Laffoy J. Status of Judgment: Approved |
Neutral Citation [2010] IEHC 539 THE HIGH COURT [2008 No. 184 CA] IN THE MATTER OF AN APPLICATION CONCERNING CIRCUIT COURT PROCEEDINGS BEARING RECORD NUMBER AND TITLE: Record No. E33/06 THE CIRCUIT COURT SOUTH EASTERN CIRCUIT COUNTY OF KILKENNY BETWEEN GERARD O’CONNOR PLAINTIFF AND
NOEL O’CONNOR, ISOBEL LEVISON (ALSO KNOWN AS ISOBEL O’CONNOR) AND MARY O’CONNOR DEFENDANTS Judgment of Miss Justice Laffoy delivered on the 29th day of October, 2010. 1. The application 2. The related proceedings 2.2 The testator was the father of Noel O’Connor, the executor, Mrs. Kwaak, Mary O’Connor, the third named defendant in the Circuit Court proceedings, and Pamela O’Connor. He made his last will and testament on 20th December, 1995. In it, he appointed the executor to be his executor. He directed that his farm, including livestock and bungalow, be sold within one year of the date of his death. He directed that from the net sale proceeds thereof Noel O’Connor receive the sum of £20,000 as a repayment for a loan given to the testator by him in 1983 to enable him to purchase the farm. The balance of the proceeds of sale would have fallen into the residue, which he devised and bequeathed in equal shares to Mrs. Kwaak, Mary O’Connor, the executor, Noel O’Connor and Jenina Kwaak, his granddaughter. The testator died on 25th March, 2000. Probate of his said will was granted to the executor on 17th November, 2004. 2.3 The related proceedings have not been progressed in this Court because the executor has been constrained to bring equity proceedings in the Circuit Court to recover possession of the farm and bungalow, being the lands registered on Folio 17870, County Kilkenny, from Noel O’Connor, his wife Isobel O’Connor who is the second named defendant is the Circuit Court proceedings, and Mary O’Connor. As the record number of the Circuit Court proceedings indicates, those proceedings have been in being since 2006. 3. The Circuit Court proceedings 3.2 As regards the claim for possession of the lands, the order of the Circuit Court made on 19th July, 2010 provides as follows:
(b) that €25,000 was the measure of loss of profits for eight and a half years and that there should be a decree for €20,000 in favour of the executor against Noel O’Connor; and (c) that the claim against Isobel O’Connor, the second named defendant, be struck out on foot of her undertaking to the Court not to enter onto the lands, the house or property save by express invitation by the executor. 4. The law relevant to the application
(b) he must show the existence of something like mistake and that mistake as to procedure and, in particular, the mistake of counsel or solicitor as to the meaning of the relevant rule is not sufficient, and (c) he must establish that an arguable ground of appeal exists. 4.3 Counsel for Noel O’Connor also referred to the decision of the Supreme Court in G.K. v. Minister for Justice [2002] 2 I.R. 418. That case related to an application to extend the time for applying for judicial review under a statutory provision which required the application to be made within the period of fourteen days unless the High Court considered that there was good and sufficient reason for extending the period within which the application should be made. In my view, it has little or no relevance to this application, save that Hardiman J. (at p. 422) cited the Éire Continental case as an example of a situation in which the merits of the substantive case are considered relevant where the Court is called upon to extend a period of time limited for taking any step. 5. Application of the law to the facts 5.2 The position adopted by the executor in relation to the third condition was that Noel O’Connor does not have an arguable ground of appeal against the decision that his claim is statute-barred by virtue of s. 9(2) of the Civil Liability Act 1961. As I understand it, and I emphasise that the pleadings are not before the Court, in addition to defending the executor’s claim on the basis that he had acquired title by the transfer in 1985 executed in his favour, Noel O’Connor also counterclaimed for a declaration that he has title to the lands registered on Folio 17870. In my view, he does have an arguable case that he is entitled to defend the claim for possession brought by the executor on that basis and that s. 9(2) of the Act of 1961 has no application to his defence of the executor’s proceedings against him, as distinct from, and irrespective of, his counter-claim. 5.3 In my view, he has also an arguable case that his situation is distinguishable from that of the plaintiff in the authority relied on by the executor: the decision of O’Keeffe J. in Prendergast v. McLaughlin [2009] IEHC 250. In that case, O’Keeffe J. held (at para. 30) that the plaintiff’s cause of action was founded in contract or quasi-contract and that he was suing the defendant in his capacity as personal representative of the deceased owner of the land in issue for breach of the deceased’s promise to bequeath the lands to the plaintiff, which breach could only have occurred during the lifetime of the deceased, so that the cause of action accrued before the death of the deceased and was subject to s. 9(2) of the Act of 1961. The position being advanced by Noel O’Connor is patently different. He is defending the executor’s claim for possession on the basis that he is in possession of the land on foot of the title he acquired by the deed of 1985, which entitles him to stay in possession. That defence may or may not stand up on the facts or in law in due course, but Noel O’Connor certainly has an arguable case that he is not precluded by s. 9(2) of the Act of 1961 from maintaining it. 5.4 The executor contends that there is a potential prejudice to the estate of the testator because, following the order of the Circuit Court, he had hoped to sell the lands in November 2010 and is fearful that, if the sale is deferred to Spring 2011, there is a risk that the lands could be devalued in the intervening period. While one can understand the concern of the executor that he would be subject to criticism from the residuary beneficiaries of the testator, if he were to consent to an extension of time, given that over ten years have elapsed since the date of the death of the testator, and action was not taken to recover possession of the lands until after the related proceedings were instituted, I am not satisfied that the inevitable delay in selling the lands is a factor to which the Court should have regard. In any event, one of the extraordinary features of this application is that the three residuary beneficiaries other than the proposed proponents on the appeal, Mrs. Kwaak, Jenina Kwaak and Mary O’Connor, have consented to Noel O’Connor’s application. 6. Decision on the application 6.2 The appeal will be by way of re-hearing. I consider that it would be appropriate to link the appeal to the related proceedings in this Court and to give it the earliest hearing possible.
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