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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> C.M -v- A.M [2013] IEHC 636 (22 February 2013)
URL: http://www.bailii.org/ie/cases/IEHC/2013/H636.html
Cite as: [2013] IEHC 636
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Judgment Title: C.M -v- A.M Neutral Citation: [2013] IEHC 636 High Court Record Number: 2012 90 CAF Date of Delivery: 22/02/2013 Court: High Court Composition of Court: Judgment by: White Michael J. Status of Judgment: Approved |
Neutral Citation: [2013] IEHC 636 THE HIGH COURT [2012 No.90 CAF] IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT 1989 AND IN THE MATTER OF THE FAMILY LAW ACT 1995 AND IN THE MATTER OF THE DOMESTIC VIOLENCE ACT 1996 BETWEEN C.M. APPLICANT AND
A.M. RESPONDENT JUDGMENT of Mr Justice Michael White delivered the 22nd day of February 2013 1. This Court on the 9th October 2012 granted an order in favour of the applicant directing that the payment by the respondent to Dunboyne and District Credit Union of €51,386.55 be reversed subject to any submission the Credit Union wished to make. The Court granted liberty to the Credit Union to make submissions and directed the in camera rule be dispensed with for the purposes of Dunboyne and District Credit Union making submissions. The Court had previously made an ex parte order on the 5th October, 2012. 2. The Dunboyne and District Credit Union (hereinafter ''the third party") have availed of their right, pursuant to the Court order, to make submissions to the Court. Submissions were made on the 19th December, 2012, and the court gave liberty to the third party to file an affidavit and adjourned the making of further submissions to the 25th January 2013, when further submissions were made, and judgment was reserved. 3. The history of the matter is that the applicant issued family law proceedings in the Circuit Court on the 4th July, 2012, wherein it was set out in the indorsement of claim that the family home held in the joint names of the parties was subject to five mortgages in favour of the Educational Building Society in the sum of approximately €431,708 and that one of the mortgages on the property was invested in property in Spain. The indorsement of claim further recited that this asset was at present being sold for the purposes of reducing the mortgages on the family home and further that the applicant was anxious to retain the family home pending one of the children completing his secondary education. 4. The family civil bill sought relief pursuant to section 9 (1) of the Family Law Act 1995 (hereinafter "the Act of 1995") seeking a transfer of the family home into her sole name. 5. The Spanish property was sold to the applicant's sister and brother-in-law, the net proceeds being the sum of €147,948. 6. D.M. O'Brien & Co., the Solicitors for the respondent wrote to Gore & Grimes, Solicitors for the applicant on the 18th June, 2012 stating:-
12. Carney McCarthy, Solicitors replied by letter of the 1 October, 2012 which was also sent by fax and stated:-
14. By reply on the same date on the 1st October, 2012, Gore & Grimes, Solicitors wrote to Carney McCarthy, Solicitors stating:-
17. A notice of appeal against the refusal to renew the order on the 4 October, 2012 dated the 5th October, 2012 was lodged. 18. In addition the applicant applied ex parte to the High Court, relying on the inherent jurisdiction of that court, seeking relief. 19. This Court by order of the 5th October, 2012, directed the respondent or solicitor for the respondent to disclose and vouch to the Court full details of the distribution of the said proceeds of sale of the Spanish property in the total sum of €147,148 and made an order pursuant to section 35 of the Act of 1995 that all disbursements made by the respondent in breach of the aforesaid undertaking be set aside and that the respondent be further restrained from dissipating any proceeds of the sale until further order. The order o fthe 5th October, 2012 was granted ex parte. 20. A notice of motion was duly issued returnable to this Court on the 9 October, 2012, and after full submissions were made by the applicant and the respondent when relevant affidavits and pleadings were opened, the Court made the order already referred to of the 9th October, 2012. 21. From a further booklet of correspondence lodged with the Court and from the affidavit of Mary Tierney, Manager of the Dunboyne and District Credit Union Limited sworn on the 10th January, 2013 the following undisputed facts have emerged. 22. Carney McCarthy, Solicitors by express tracked post on the 1st October, 2012 wrote to Dunboyne and District Credit Union Limited sending a bank draft in the sum of €51,386.55 payable to Dunboyne and District Credit Union Limited. This payment was in discharge of a loan granted to the respondent in the sum of €55,000 repayable over a period often years. Application for the loan was made on the 17th November, 2010, and approved on the 25th November, 2010, and was for a car and education purposes. The applicant was not a party to this loan and did not sign any documents in respect of same. 23. The third party received the letter from Carney McCarthy, Solicitors on the morning of the 2nd October, 2012, duly posted it to its ledger and in the course of the morning of the 2nd October, the draft was collected by G4 Securicor for lodgement in the Ulster Bank Limited. 24. On the afternoon of the 2nd October, 2012 the Credit Union received a faxed transmission from Carney McCarthy asking that the draft would be returned to them. The letter stated:-
26. Ms. Tierney stated in her affidavit that it was not until the morning of the 8th October, 2012 that she got the first indication that the proceedings were family law proceedings. 27. It is accepted by the third party that no effort was made by the Credit Union to contact the Ulster Bank Limited to try and arrest the processing of the bank draft. 28. Counsel for the third party submitted to the Court that the payment to the third party was not covered by section 35 of the Family law Act 1995 because it was a disposition made for valuable consideration (other than marriage) to a person who at the time of the disposition acted in good faith and without notice of an intention on the part of the respondent to defeat the claim for relief. 29. Ms. Jackson, Counsel for the third party has opened a number of English authorities on the matter.
(2) B v B (P intervening) Reviewable Disposition [1995] 2 Fam. CR 670. (3) Kemmis v Kemmis (Weiland and Others, Interveners) Lazard Brothers & Co. (Jersey) Ltd. v. Norah Holdings Ltd and Others [1988] 1 WLR 1307. 31. This Court is satisfied that pursuant to the provisions of the order of the 9th October, 2012, the third party is entitled to make submissions to the Court and to request the Court to grant a declaration that the payment to the third party is not a reviewable disposition. 32. This Court accepts that the third party acted in good faith but as a matter of fact it is not correct to say that it acted without notice of an intention on the part of the respondent to defeat the claim for relief. 33. The Court accepts that the information it received on the 2nd October, 2012 was minimal, however the third party did receive a letter from Carney McCarthy & Co., Solicitors on the afternoon of the 2nd October, 2012 the exact same day of the making of the order by the President of the Circuit court. 34. The notice from Carney McCarthy, Solicitors of the 2nd October, 2012, by fax to the third party stated:-
36. The Court in directing that other disbursements could proceed did so, on the basis of either consent by the parties, or clear identification that the disbursements were for the benefit of both parties. This payment was not in any of those categories. 37. The Court having given the opportunity to the third party in accordance with its order of the 9th October 2012, to make submissions to the Court directs the third party to place the said sum on joint deposit in the names of Gore & Grimes, Solicitors for the applicant and Carney McCarthy & Co., Solicitors for the respondent.
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