Forced Partition or Sale
Post -2009 Act Cases
Provost, Fellows & Scholars of Trinity College Dublin v Kenny
[2010] IEHC 20
Miss Justice Laffoy
…..However, that lacuna has been rectified by s. 31 and s. 117 of the Land and Conveyancing Law Reform Act 2009 which commenced on 1st December, 2009. For the record, I should say that at the end of the hearing of this matter on 28th October, 2009, counsel for the parties asked the Court to defer giving judgment pro tem. On 23rd November, 2009 the Court was informed that the parties required a judgment. Nothing in this judgment is to be taken as an expression of any view on the application of the Act of 2009 to the facts, because that issue simply did not arise at the hearing.
For the reason I have outlined, I am of the view that, while the Court has jurisdiction to make a “well-charging” order in relation to the Donegal property for the benefit of the plaintiff on foot of the three judgment mortgages in issue in these proceedings, the Court does not have jurisdiction to order a sale in lieu of partition in reliance on the jurisdiction conferred by the Act of 1868.
Section 4 of the Act of 1868 mandated the Court to direct a sale of co-owned property and distribution of the proceeds, instead of a division of the property among the co-owners, unless there was “good reason to the contrary”, on being requested so to do by “the party or parties interested, individually or collectively, to the extent of one moiety or upwards of the property to which the suit relates”. Counsel for Mr. Kenny referred the Court to a decision, which is described by Wylie inIrish Land Law (Butterworth, 3rd ed., at p. 443 ff) as a “somewhat odd interpretation” of that provision. The decision is a Northern Ireland case Northern Bank Ltd. v. Adams (Unreported, Master Ellison of the High Court, 1st February, 1996). In that case the plaintiff was seeking an order under s. 4 of the Act of 1868 as mortgagee of Mr. Adams’ half-share in a house. The evidence was that the house was worth £80,000, while the sum owing to the plaintiff by Mr. Adams was approximately £10,000. Master Ellison held that there was no jurisdiction to order a sale under s. 4 of the Act of 1868 “because the realisable value of the plaintiff mortgagee’s interest is less than a moiety”. As is pointed out by Wylie, a mortgagee’s interest attaches to the entirety of the estate or interest mortgaged. Therefore, even if it is a fact that the amount due to the plaintiff on foot of the three judgment mortgages represents less than half the value of the Dartry property, that is immaterial. The plaintiff, as the judgment mortgagee of Mr. Kenny’s interest in the Dartry property, is a party interested “to the extent of one moiety or upwards”.
Accordingly, I am satisfied that the jurisdiction point in relation on the Dartry property fails. It remains to consider whether the Court should see that there is “good reason to the contrary” which militates against directing the sale of the Dartry property and a distribution of the proceeds of sale.
In the context of the application of s. 4 of the Act of 1868, counsel for Mr. Kenny raised an issue as to the application of the Act of 1976 to the Dartry property, which, as I have recorded, it is agreed is a “family home” within the meaning of that Act, in the event of the Court ordering a sale in lieu of partition. The issue has arisen because, in a affidavit sworn on 4th December, 2008, Mr. Kenny has averred that he does not consent to the sale of Mrs. Kenny’s interest in the Dartry property, in the event of a sale being ordered by the Court. That point, in my view, is of some relevance in the overall context of the application of s. 4 of the Act of 1868 to the facts, but it is also to a large extent premature.
What the Court is being asked to do at this juncture is to make an order for sale in lieu of partition of the Dartry property at the suit of the plaintiff judgment mortgagee. On the facts, this case is on “all fours” withContainercare Ltd v. Wycherley [1982] I.R. 143, in that the plaintiff in that case was a judgment mortgagee which was seeking an order for sale of a family home the title to which was unregistered land, which was vested in the joint names of the judgment debtor husband and his wife and was subject to a mortgage in favour of a building society, which had priority over the judgment mortgage. A “well-charging” order and an order for sale were made at the suit of the judgment mortgagee, Carroll J. holding that the vesting in the judgment mortgagee of the interest of the judgment debtor husband took effect by operation of law and was not a conveyance within the meaning of the Act of 1976. The specific point raised by counsel for Mr. Kenny was, apparently, not raised and was not addressed.
Following the decision inContainercare v. Wycherley, the effect of the registration of the plaintiff’s first judgment mortgage against Mr. Kenny’s interest in the Dartry property on 4th February, 2003 was to sever the joint tenancy of Mr. Kenny and Mrs. Kenny. If the Court orders the sale of the Dartry property and the sale proceeds to contract stage, the question of transmitting the title to the respective undivided moieties of Mr. Kenny and Mrs. Kenny to the purchaser will arise. At that stage, the question of the requirement of the consent under the Act of 1976 of either of them to the conveyance of the other party’s moiety could arise, because, as was pointed out by Murphy J. in O’D. v. O’D. (High Court, unreported, 18th November, 1983), a sale under the Act of 1868 does not constitute “a parliamentary conveyance”. It is premature to express any view on whether the consent under the Act of 1976 of either Mr. Kenny or Mrs. Kenny to the conveyance of the other’s moiety to a purchaser pursuant to a Court sale would be required. However, even if it were held that it would be, s. 4 of the Act of 1976 confers a discretion on the Court to dispense with consent to a conveyance of an interest in a family home. In exercising the discretion the Court is required not to dispense with the consent unless it considers that it is unreasonable for the spouse to withhold consent taking into account all the circumstances including the respective needs and resources of the spouses and of the dependant children (if any) of the family and, in a case where the spouse whose consent is required is offered alternative accommodation, the suitability of that accommodation having regard to the respective degrees of security of tenure in the family home and in the alternative accommodation.
In considering whether to order a sale of the Dartry property, it seems to me that common sense dictates that, on the assumption (but without expressing any view on the point) that it might be held that the prior consent under the Act of 1976 of either Mr. Kenny or Mrs. Kenny to a conveyance to the purchaser of the other’s moiety would be required in the event of a Court ordered sale proceeding to completion, the Court should have regard at this juncture, insofar as it is possible to do so, to the factors to which the Court would have to have regard, if it were to become necessary to consider dispensing with the consent of either Mr. Kenny or Mrs. Kenny under the Act of 1976. To that extent, I think the point made by counsel for Mr. Kenny is relevant. However, in addition to the issue of the requirement for consent under the Act of 1976 to completion of the sale being premature, it must be emphasised that prematurity also arises from the fact that it would be the circumstances which would prevail at the time the Court would be considering whether to make an order under s. 4 of the Act of 1976 which would be relevant to a determination under that section.
As I have stated, it is the jurisdiction of the Court under s. 4 of the Act of 1868 which is being invoked by the plaintiff. On its face, s. 4 is mandatory in the sense that it provides that the Court “shall, unless it sees good reason to the contrary” direct a sale. However, counsel for the plaintiff properly acknowledged that the jurisdiction to order a sale is discretionary because, in effect, the jurisdiction “piggy-backs” on the Court’s jurisdiction to make an order for partition, which survived as equitable jurisdiction, although it has been abolished since 1st December, 2009 by virtue of s. 31(6) of the Act of 2009.
In the cases in which what constitutes “good reason to the contrary” for the purposes of s. 4 of the Act of 1868 has been considered, the tendency in the recent past has been to interpret the expression more widely than was the case historically (of the observations of Campbell J. in Northern Bank v. Haggerty at p.217) In O’D. v. O’D., on an application by a husband who jointly owned the family home with his wife for the sale thereof in lieu of partition, Murphy J. stated that, in his view, what constitutes good reason at the present time would properly have regard to the rights of the parties under the Act of 1976. A similar approach was adopted by this Court (Denham J.) in First National Building Society v. Ring [1992] 1 I.R. 375, where, on an application by a judgment mortgagee of the first defendant husband for an order for sale in lieu of partition of a family home, in a passage relied on by counsel for Mr. Kenny (at p. 381), Denham J. stated:
“The second defendant who is a co-owner and who is an innocent party and has no judgment registered against her would undoubtedly suffer a significant sacrifice if her property, part of the family home, were sold now. In the circumstances it does not appear appropriate now to order partition or sale in lieu of partition.”
In that case, the Court adjourned the proceedings generally with liberty to re-enter. Because of a dearth of evidence in relation to,inter alia, the valuation of the property and the circumstances of the persons interested in the property, in particular, the second defendant, the Court directed an inquiry into factual matters which would indicate the impact of a Court ordered sale.
There is no such dearth of evidence in this case. Certain evidence was put before the Court by the plaintiff as to the assets of Mr. Kenny and Mrs. Kenny with a view to demonstrating that the relief sought would not deprive Mr. Kenny and Mrs. Kenny of the ability to provide themselves with an alternative home. The following is a summary of the evidence:
(a) There is evidence before the Court, on the basis of a “kerbside” valuation obtained by the plaintiff, that the value of the Dartry property is in the region of €1.5m. If it sold for that price, when the mortgage in favour of Bank of Ireland is discharged, the balance of the proceeds of sale would exceed €1m. Mrs. Kenny’s share of the proceeds would be in the region of €500,000. The plaintiff’s judgment mortgages would absorb the totality of Mr. Kenny’s share.
(b) There is also evidence before the Court, on the basis of a similar type valuation, that the value of the Donegal property is in the region of €125,250. As I have stated, it is not clear what if anything is due to Allied Irish Finance Co. Ltd. on foot of the charge which is registered on the two folios. On the basis of the jurisdictional point in relation to the Donegal property, I have held that that property cannot be the subject of an order for sale in these proceedings, so that it remains the property of Mr. Kenny and Mrs. Kenny subject to whatever, if any, money is due to Allied Irish Finance Co. Ltd. and, as regards Mr. Kenny’s interest, to all the judgment mortgages registered by the plaintiff against it.
(c) While the plaintiff explored the probability that Mr. Kenny owns other assets, the only other asset of significance which emerged is his shareholding in Firestone Diamonds plc., which was valued at £170,695.68 as of the end of October 2009. Mr. Kenny averred that the shares are encumbered in favour of his bank as security for a personal loan and that the amount secured is in the region of €95,000.
As to their personal circumstances, Mr. Kenny and Mrs. Kenny are both elderly, being in their late seventies. Their five adult children have all left home. Three of their children reside in Ireland but, as it was put, they have their own families. In this context Mrs. Kenny has averred in her affidavit replying to the plaintiff’s claim that it is not at all clear that there will be resources to accommodate either her or Mr. Kenny, if the Court should order a sale of the Dartry property.
Counsel for the plaintiff acknowledged that there will be a degree of disruption to the lives of Mr. Kenny and Mrs. Kenny if they are required to vacate the Dartry property which has been their home for fifteen years in consequence of a Court sale. However, the position of the plaintiff is that Mrs. Kenny will have sufficient resources to provide alternative accommodation for herself and Mr. Kenny in the event of the Court ordering a sale of the Dartry property. That, it seems to me, is the correct inference to draw from the evidence. It is crucial factor in determining whether the Court’s discretion should be exercised in favour of ordering a sale at this juncture.
Taking all of the relevant factors into account, I have come to the conclusion that it would be a proper exercise of the Court’s discretion to order a sale of the Dartry property for the purpose of meeting Mr. Kenny’s liability to the plaintiff out of his share of the proceeds of the sale thereof.
As I have already indicated, the order in relation to the Donegal property will be limited to a “well-charging” order.
In relation to the Dartry property, there will be the usual primary order in a mortgage suit containing a “well-charging” declaration, a finding as to the sum due to the plaintiff by Mr. Kenny as of 28th October, 2009 (€663,239.34) and of continuing interest due at the rate of €105.63 per day from 29th October, 2009. There will be an order for sale in the event of the monies found due not being paid to the plaintiff within one year from the date of this judgment. That allows a longer period than usual before the order for sale becomes operative.
It would be highly desirable that the parties should reach a settlement in relation to Mr. Kenny’s indebtedness to the plaintiff before the order for sale becomes operative, not only because of the disruption to the lives of Mr. Kenny and Mrs. Kenny which will be inevitable if it does become operative, but also because of the fact that the debt is growing at the rate of almost €40,000 per annum and the mortgage suit process is protracted and expensive.
Yippi Trading Ltd -v- Costello & anor
[2013] IEHC 564 (06 December 2013)
Ryan J.
The question that arises in this case is whether a car park that is held by the parties in fee simple as tenants in common in equal shares should be divided into equal parts owned separately.
The plaintiff is a management company of five adjoining, one-storey commercial units located at the rear of a substantial new development of retail and office accommodation at Dargle Road, Bray, Co. Wicklow which is known as Raven’s Hall. The defendants are the executors of the late Joseph Costello, who was the developer of the building project on the site of the old Sunnybank Inn. Between the terraced block of units run by the plaintiff and the new complex lies the car park that originally belonged to the public house and which is the subject of the dispute that I have to resolve.
Yippi Trading Ltd and the defendants, in their capacity as legal personal representatives of the late Joseph Costello, are co-owners of the car park as freehold tenants in common. The public house originally owned and controlled the whole area but that changed as a result of two agreements in 1980. On the 3rd November, 1980, Sunnybank Inn Limited conveyed an undivided moiety of the area to the plaintiff’s predecessor in title in fee simple in equal shares. The vendor and purchaser made another agreement on the 23rd November, 1980 to regulate the use of the land that was now being held in common. The parties agreed as follows:-
1. That the plot of ground shall at all times be used as a car park for the parties themselves, their employees, customers and invitees and licensees and to provide access whether on foot or in vehicles for the parties, their employees, customers, invitees and licensees to the respective adjoining premises of the parties from Upper Dargle Road.
2. That the cost of repairing and maintaining the tarmacadam surface on the car park shall be borne equally by the parties hereto.
3. Each party will cooperate with the other in regulating the orderly use of the car park as a car park and will not permit any part thereof to be used by anyone other than those requiring parking facilities while visiting or calling to the respective premises of the parties.
4. That all expenses incurred in marking out the car park in car parking spaces or in providing lighting thereof or in controlling the use of the car park as a car park shall be borne equally by the parties hereto.
There was no problem with the car park until approximately 2006, when construction began for a major development project on the site of the public house, which had been closed for some years. The work continued until 2008 and caused a great deal of disruption to the occupiers of the units managed by the plaintiff and their visitors. The development comprised approximately 100,000 sq ft. of shops and offices on three floors.
The developer of the Sunnybank Inn site was Mr. Joseph Costello who died on the 10th February, 2007, having been seriously ill for a period of about one year. The defendants are his legal personal representatives. Mr. John Costello is the brother of the late Joseph Costello and is a retired veterinary surgeon who has turned to the management of the development with a view to preserving the assets of the deceased for the benefit of the deceased’s children.
These proceedings were commenced by Equity Civil Bill dated the 12th December, 2007, in which complaint was made principally about nuisance and trespass during the construction phase of the property. There was also a claim for trespass because of the encroachment onto the car park area of a boundary wall erected during the course of construction. By order of Cooke J. made on the 19th November, 2012, the proceedings were amended and transferred to this Court with the inclusion of a claim for relief under s. 31 of the Land and Conveyancing Law Reform Act 2009. In particulars that were served in May 2013, two new complaints were included, namely, that there was an alteration of levels of part of the common property and that by reason of the construction the car park had now come to be used by third parties. In the course of the proceedings, the claim for damages for nuisance and trespass was withdrawn, but the claim for severance of the interests of the parties was strenuously maintained and that is the issue that has to be decided.
The Land and Conveyancing law Reform Act, 2009 replaced the Partition Acts and governs the relations between the parties to this action. The relevant parts of section 31 provide as follows:-
31(1) Any person having an estate or interest in land which is co-owned whether at law or in equity may apply to the court for an order under this section.
(2) An order under this section includes-
(a) an order for partition of the land amongst the co-owners, (b)
(c) an order for sale of the land and distribution of the proceeds of sale as the court directs,
(e)
(f) such other order relating to the land as appears to the court to be just and equitable in the circumstances of the case.
(3) In dealing with an application for an order under subsection (1) the court may –
(a) make an order with or without conditions or other requirements attached to it, or
(b) dismiss the application without making any order, or
(c) combine more than one order under this section.
(6) The equitable jurisdiction of the court to make an order for partition of land which is co-owned whether at law or in equity is abolished.”
The plaintiff seeks an order dividing the car park into two parts, with it being granted the number of car parking spaces it had before the development commenced. The reasons are:
1. As owner in common the plaintiff is entitled to partition, subject to such consequential measures as are required.
2. The occupiers of the plaintiffs units have been disrupted since 2008 and do not want to have any more to do with the defendants.
3. They want their half of the property, which is the only fair solution of the dispute.
4. When the gym in Raven’s Hall was operating the plaintiff occupiers’ spaces were often taken.
5. Their use of the car park is also restricted because of use by Bray residents.
6. The building work encroached on the car park, which was changed and a retaining wall was built which impedes access to the plaintiffs units for deliveries.
7. The plaintiff is not interested in running a car park company.
The defendants do not dispute that there was disruption during the building work or that there is a big problem with outsider parking but say that is not related to their development. The defendants resist division on the grounds that:
1. The agreement between the parties dated 23rd November, 1980 is binding and should be enforced. On the basis of the maxim pacta sunt servanda, the Court should decline to make an Order for partition of the car park.
2. A joint management system is in accordance with the 23rd November, 1980 agreement; Examples of management solutions include a pay and display system, permits, a barrier, electronic fobs or a clamping system. The defendant’s solicitor, by letter of the 5th May 2013, called on the plaintiffs to operate the car park agreement but it was not responded to and the plaintiffs have acknowledged that a management solution has never been tried.
3. The plaintiff recognised the need for action and envisaged the steps that the defendants favour in a letter of 3rd June, 2010 written by its solicitor to an auctioneer/valuer in connection with the case, where he said
“We will have a look at the possibility of car park management for the future as I understand that the increases in Pay and Display charges in Bray has meant that the car park has become extremely popular for users of the Estate and nearby Shops. We will have to look at ways of putting in place a system of clamping or Barrier or some other method of controlling the use of the Car Park.”
4. An order in favour of the plaintiffs could potentially decrease the value of their premises. There would be less flexibility in the event of a partition solution and potential planning implications.
5. As a result of the construction, the potential number of car park spaces has grown from 43 to 47 spaces.
6. Severance would be complex, difficult and unsatisfactory because rights of way will have to be granted to each party over the other’s holding; it might require planning permission or undermine the existing planning that was granted on the premise of common ownership.
7. The defendants own an area at the back of the plaintiffs building with space for up to 18 cars.
The witness for the plaintiff was Mr David Garvey, whose company Advanced Surgical Concepts, occupies two of the five units and has been in the location since 1998. Mr. Garvey began working there in 2000. Prior to the redevelopment by the late Mr Costello, for the first five years until 2005 the Sunnybank Inn was a quiet, unused public house. It did not use the car park as it had no customers so he and other unit holders had exclusive use of the car park. It was tarmaced but not delineated and the 44 spaces were underused.
There were ten or eleven planning applications relating to the property and Mr Garvey objected to a number of them. The witness understood the application to be predicated on having a car park for the occupants of the proposed building. The plan was to transform the site from an old sleepy pub into big business and shopping units.
Construction started in 2006 and lasted 12 – 18 months. The occupants could not park in the car park during the construction but there was an access road and they parked at rear of site. There were heated discussions about the car park being off limits during that time. Some cars were damaged and having to drive through a building site was annoying.
Physical changes were made to the car park. The defendants removed an embankment and built an ESB sub-station, removed part of the main car park and built a retaining wall. The car park is now smaller and narrower. Trucks and vans have difficulty and large articulated trucks find it impossible to turn and drive up to units because of the retaining wall.
When the works were completed, parking was not an issue while the property was vacant but that changed when the retail units on ground floor and the gym above them were operating. A third floor above the now vacant gym floor has never been occupied.
These things have affected Mr Garvey and other tenants in their use of the car park. Parking is a premium in Bray and this is now effectively the only free car park in Bray. The gym being closed has alleviated the situation but the problem will recur if another tenant is found.
Mr Garvey sees division as the solution with the plaintiff getting 22 of the 44 spaces. Yippi is not interested in running a parking company. Wheel clamps or meters are not going to work.
In cross-examination, Mr Garvey agreed that although Yippi instituted proceedings in 2007, it was not until November company which owns the common assets. Looks after the assets of the tenants in the car park. Has 5 directors. Garvey not a director. Action was taken in 2007, not until November 2012 that the claim for partition was made based on same facts. Cooke J. allowed an amendment to introduce a claim for partition. On the 1ih May 2013, further particulars were furnished in which Yippi made two new complaints, namely, encroachment by the new building and that third parties were using the car park and had been encouraged by the defendants.
The witness never attended a meeting to try to find a management solution, nor was he aware of anyone from Yippi attending a meeting to resolve the matter. He agreed that the car park was upgraded by the defendants. He did not believe Yippi paid for any of that work.
The evidence revealed some disagreement about the precise number of parking spaces and whether the building work reduced or increased them, the ownership of some particular areas and the use that is made of them but none of the disputed issues is of great importance. It has to be remembered that there is no way of deciding definitively how many spaces there are because they are not marked out and so they can only be estimated.
Mr. Garvey agreed in principle with the suggestion of Mr Conlon SC, for the defendants, that if were to be a management solution there were various options, including a permit system, pay and display clamping or a barrier at the front of the car park. The plaintiff’s solicitor had suggested in one letter using a barrier or other system to deal with outsiders using the car park but Mr. Garvey agreed no action was taken in relation to that.
The defendants’ evidence began with Mr. John Costello, who is the brother and one of the executors of the late Joseph Costello who died in February 2007 while the development was being built. He had been seriously ill for about a year.
He did not agree that users of the gym created a problem in the car park. When it was in operation, only a very small number parked there in business hours. But there is a difficulty with unauthorised use. Such users include people who work in Bray, parents leaving and collecting children at school and shoppers.
There is an underground car park operated by a door code which is not open at present but which is available for use by tenants in the building and could cater for gym users when needed.
A caretaker employed by the defendants comes in on two days per week. He clips the trees and cleans the car park.
In regard to possible solutions, Mr Costello suggested a pay and display system operated on behalf of the co-owners. The car park should not be open to the public. Reserved or permanent spaces could be delineated. Only minor management would be required.
His understanding was that there could be planning issues involved in division in that the planning application was based on common ownership and usage of the car park.
Mr Peter Duffy, architect, said that planning permission might be required in putting severance into effect. In regard to the option of erecting gates, they would open and shut and thereby impede the use of some spaces.
Mr Frank Gallanagh, auctioneer and valuer, said that in his opinion partition would not work. Although he accepted that he had no experience of running a commercial car park, he said that he has been dealing with a car park company in Bray. Division is not a realistic possibility. There would be difficulties for both parties and he instanced deliveries. A barrier would affect access to the ramp in the car park and would itself reduce the number of spaces. The property would be devalued if partition happened. The situation lends itself to ‘pay as you go’ parking.
The parties submit that the court is at large in deciding the question. They have addressed practical issues in their evidence and submissions, in addition of course to the defendants’ reliance on the car park agreement.
The 2009 Act gives the court a wide discretion in cases of dispute to decide how best to reconcile the competing interests. Section 31 includes the power to refuse to make an order and dismiss the application outright. S-s.(3) permits the court to attach conditions to any order or to grant a combination of orders under s. 31. There is no guiding case law on this provision. There will undoubtedly be situations where there is little sense in keeping tenants in common tied in to a legal relationship which does not meet their needs and in which shared ownership of the property is no longer feasible. In such a scenario there is merit in the court making an order in favour of partition of the property in question. However, I do not feel that this case fits that category.
It seems to me that for an order of partition to be made, division of the property in question must be feasible in both a practicable and legal sense and have regard to any potential planning permission implications. It is a question of practicality rather than of principle. If partition is refused in one circumstance, that is not the end of the matter for all time and in every situation. The relationship continues and with that the option if circumstances change of seeking to persuade a court to adopt one or more of the statutory reliefs.
The benefits of severance of common ownership are clarity and simplicity and freedom to control one’s own property without the need for third party consent. I think that a court will generally be sympathetic to an application under s.31. However, the disadvantages and complications of partition in the circumstances of this case outweigh the gains that the plaintiff hopes will result. I would have come to that conclusion on balance without the car park agreement but when the 1980 deed is put into the equation the practical justice of retaining common ownership becomes even more clear.
The inconvenience resulting from the building work was the origin of this dispute and the primary reason for the proceedings. Another problem has arisen because of increasing pressure on parking facilities in Bray and how much it costs. But these issues are among the things the agreement of 23rd November 1980 was intended to cover. It may come to pass that the car park deed is set aside because the co-ownership of the car park is terminated. That could happen by a new agreement or by court order. But in the meantime, there is a specified mode of dealing with the shared asset. That has not failed; it has not been tried.
I have come to the conclusion that partition is not the answer to this application for the following reasons but I do not base conclusions on the possible need for planning permission for partition or that the present permission for Raven Hall might be invalidated or on a reduction in the value of the property.
1. There is an agreement for the management of the car park. The parties are required to co-operate.
2. The problems that have arisen are practical and are amenable to a range of measures to deal with them. The biggest, indeed it may be the only problem is outsider parking which can be controlled by co-operation in managing the common asset.
3. The parties are business people who do not exhibit personal animus towards each other so there is no reason to think that co-operation IS impossible.
4. Sharing out only the car park spaces would leave a residual area in common ownership that would still be subject to the 1980 agreement. That would require that spaces be marked out since there are none at present and co-operation would be required for that.
5. Partition would necessarily involve mutual rights of way over the parties’ separate properties; those rights would require joint management so actual segregation would not result.
6. A co-operative management solution is an option, as the plaintiff acknowledged in 2010. Such an approach has not been tried.
7. The late addition of the partition claim implies that the plaintiff is not irrevocably committed to it.
8. Access rights by the parties and their legitimate visitors are exercisable over so many areas of the car park that their interests are inextricably mixed up. The evidence of Messrs Garvey and Costello as to deliveries, tenant access to upper floors of Raven Hall and individual ownership of abutting or enclosed pockets of land amply justifies this point.
9. Difficulties such as those encountered by delivery lorries going to the plaintiffs units because of the new retaining wall could best be addressed in concert and again possible solutions were canvassed in evidence.
10. It is open to the parties to agree to cut out pieces of the common areas and put them into exclusive, individual ownership.
Accordingly, I dismiss the application for partition without making any order.
Rickard -v- Rickard
[2016] IECA 158 (01 June 2016)
JUDGMENT of the Court delivered by Ms. Justice Irvine on 1st day of June 2016
1. This is the defendants’ appeal against the judgment and order of the High Court (Keane J.) dated respectively 17th and 16th November, 2015. By his order Keane J. varied the terms of an earlier order of Feeney J. in the High Court of 6th June, 2013, which had directed the sale of certain lands by public auction, so as to permit them to be sold by private treaty. Thereafter he approved the sale of those lands in the sum of €3,450,000.
Background facts
2. The plaintiff, his mother and three brothers were the joint owners of some 448 acres of farmland (“the lands”) in Co. Meath. His brothers are the defendants to these proceedings. The lands were the subject matter of a partnership agreement made in 1994. After the death of his mother in 2006, the plaintiff decided to cease farming and realise his share of the assets. Thus, in July, 2007, he commenced proceedings by way of plenary summons seeking a declaration that the partnership had terminated on the death of his mother in December 2006.
3. On 16th December, 2010, the declaration sought by the plaintiff was granted.
4. The plaintiff sought an order for sale of the lands in early 2011 and that application was opposed by the defendants on the grounds that it was premature given that “accounts and enquiries” had not been conducted. Accordingly the application was adjourned to allow an arbitrator conduct that exercise. Regrettably, the appointed arbitrator, Mr. Pat Gillen, FCA, who had advised that he would likely complete his role within three months, asked to be relieved of his appointment having regard to the lack of co-operation from the defendants.
5. As a result of the aforementioned matters, on 12th April, 2013, the plaintiff renewed his application for an order for sale. He also sought an order terminating the appointment of Mr. Gillen and an order directing that the examiner conduct the taking of accounts and enquiries.
6. On 6th June, 2013, Feeney J. directed that the lands be sold by public auction and in such lots as might be advised by the auctioneer to be appointed and at the reserve that he might specify. Further, he ordered the defendants to vacate the lands by 7th October, 2013, to facilitate that sale.
7. In March, 2014 Messrs. Ganly Walters Auctioneers were appointed to have carriage of the sale. Mr. Ganly advised a reserve of €5,000 per acre to the examiner in September, 2015.
8. In passing, I should state that the defendants did not vacate the lands as per the order of Feeney J. As a result, numerous court applications ensued. Suffice to state that each of the defendants were found guilty of contempt of court and were committed to prison. They were only saved from that plight by the fact that a stay was placed on those orders based on undertakings given by them not to re-enter the lands. It is relevant to note in this regard that the defendants’ obstructive conduct came before the Court on no less than seven occasions in 2014.
9. In June, 2015 Mr. Ganly recommended that the lands be offered for sale by way of public auction on 29th September, 2015, with a closing date for any proposed sale to be fixed for 1st December, 2015.
10. It is material to record that at approximately 2 a.m. on the morning of the auction, the plaintiff’s solicitor Mr. Curran, who had joint carriage of the sale with Mr. Martin the solicitor for the first named defendant, received an offer from the defendants. The plaintiff was not willing to accept that offer as it did not address a number of issues which he considered to be fundamental to the resolution of the dispute.
11. It is not disputed that the lands were extensively advertised and that the auction itself was well attended. Neither is it in dispute that, with the exception of a bid of €1 made in respect of each of the lots, no other bids were forthcoming. It is agreed that following the commencement of the auction the aforementioned bidder intervened to inform those present that the land on offer was a family farm, was the subject matter of a family dispute and that anybody buying it would have bad luck.
12. It is accepted that when no further bids were made the auction was brought to an end without Mr. Ganly specifically advising those present that he was willing to enter into negotiations in respect of a sale of these lands by private treaty, subject to court approval. However, it is common case that when the auction ended Mr. Ganly and Mr. Curran were approached by five interested parties. Thereafter, a bidding process was conducted amongst these parties with the result that a memorandum of agreement was signed in respect of each of the three lots of land. In each case the memorandum was signed by a solicitor in trust for his client and was accompanied by a deposit of 10% of the proposed purchase price taken. The total sale price achieved, subject to court approval was €3.45m.
13. Whilst initially disputed, it was later accepted that Mr. Martin, the solicitor who had joint carriage of the sale, was only contacted by Mr. Curran after Mr. Ganly had reached an agreement with the intended purchasers. Mr. Martin’s attendance was sought for the purposes of getting him to sign the various memoranda. At that stage he objected to the negotiations on the basis that the Court order had directed that the lands be sold by public auction.
14. By notice of motion dated 8th October, 2015, returnable before the Court on 13th October, the plaintiff sought an order varying the order for sale of the partnership lands made by Feeney J. on 6th June, 2013. He sought an order that they be sold by private treaty and an order approving of their sale for a total sum of €3.45m.
15. The defendants opposed the relief sought by the plaintiff and an extensive exchange of affidavits took place. On behalf of the plaintiff affidavits were sworn by Mr. Ganly and Mr. Curran and on the defendants’ behalf by Mr. Martin and Mr. Stephen Rickard. The thrust of the defendants’ objection was that the negotiations that had taken place post auction were unlawful as they had not been authorised by the High Court. Further, they were flawed and unfair to the defendants as other interested parties had been excluded from the process. In addition, they submitted that the Court could not be satisfied that the best possible price had been achieved and that in such circumstances the sales ought not be approved and the lands should be put back on the market to be sold by private treaty. In addition to the aforementioned objections, the defendants also applied for liberty to cross examine Mr. Ganly and Mr. Curran based upon a submission that the same was necessary for the fair disposal of the issues before the Court and in particular their contention that the negotiations which had taken place after the auction were flawed and unfair and that the purchase price proposed was at an undervalue.
16. It would appear likely that the application was adjourned to facilitate the exchange of the affidavits already referred to. On the 9th November, 2015, the High Court Judge refused the defendants’ application for liberty to issue notices of cross examination directed to Mr. Joseph Curran and Mr. Robert Ganly. The Court order also records that given the third named defendant’s interest in purchasing the land comprised in folio 20219 in the County of Meath, that he be given until noon on 12th November, 2015, to establish, by the means stated in the order, his ability to purchase those lands.
17. When the matter came before Keane J. on 16th November, 2015, he once again refused the defendants’ application for liberty to issue notices to cross examine Mr. Curran and Mr. Ganly and proceeded to grant each of the reliefs sought in the notice of motion. He then adjourned the matter to the following day to give his reasons.
18. On 17th November, 2015, in a detailed ex tempore judgment the High Court judge expressed himself satisfied that the Court appointed auctioneer had not engaged in a process which was impermissible or unlawful and that the spirit of the order which had been made by Feeney J. on 6th June, 2013, should be read so as to imply that he had authority to negotiate in the manner in which he did. He also expressed himself satisfied that the negotiations which had been carried out by Mr. Ganly and Mr. Curran following the failed auction had been carried out in an open, fair and transparent manner and that the process had not been unfair to the defendants. He concluded that there was no evidential basis for Mr. Martin’s assertion that those who approached Mr. Ganly after the auction were in some sense to be properly characterised as “preferred bidders”. The judge was satisfied that anybody who had an interest in purchasing the lands could have approached Mr. Ganly after the auction had they been so interested.
19. As to the defendants’ assertion that the best price achievable for the lands was likely not obtained by the manner in which the negotiations had been conducted following the failed auction, the trial judge was happy to conclude that the best sale price possible had been achieved by Mr. Ganly having regard to the circumstances in which the lands were sold. In so concluding he noted that the defendants had produced no evidence to gainsay Mr. Ganly’s opinion as to the true market value of the lands or to suggest that a greater sum was likely to be obtained if the Court were to refuse to approve of the proposed sale.
20. It should also be stated that in advance of reaching his conclusions on the facts before him the trial judge expressed himself satisfied it was not necessary for the proper determination of the issues before him to grant the defendants leave to serve notices to cross examine on Mr. Curran and Mr. Ganly. He was satisfied that the facts material to the issues before him were not in dispute and that accordingly it was not necessary for the proper administration of justice that such a cross examination be permitted.
Order of Feeney J., 6th June 2013. A final order which could not be varied?
21. Having considered the submissions of the parties on this appeal, I am quite satisfied that the High Court judge was correct in law when he concluded that Mr. Ganly, notwithstanding the provisions of the order of the 6th June, 2013, had implicit authority, the auction having failed, to negotiate with such purchasers as expressed an interest in the land with a view to concluding an agreement subject to court approval. Accordingly I reject the submission that, the auction having failed, it was incumbent upon the plaintiff to return to court to seek a further order permitting a sale of the lands by private treaty.
22. The first thing to say about this issue is that the defendants advanced no legal authority in support of their proposition.
23. Secondly, I reject their submission that the order could not be varied because it was a final order. That aspect of the order which directed that the sale should be by public auction was an ancillary order and did no more than specify the mechanism by which effect would be given to the substantive order. Accordingly, I see no reason why that aspect of the order would not be amenable to amendment or variation, if indeed variation was required. As a matter of fact I note that the order of the 6th June, 2013, had already been varied by order of the Court made on 20th April, 2015, when the lands comprised in folio 2597 were excised from the order for sale.
24. Thirdly, I am quite satisfied that when a court makes an order for the sale of lands, such as was made by Feeney J. in the present case, it is implicit that the court appointed auctioneer is authorised to conduct that auction in the same manner as is considered professional and prudent when engaged to sell a property at public auction otherwise than pursuant to court order. In other words, if a reserve is not reached or no bid is made, it is implicit that the auctioneer is authorised to open negotiations with interested purchasers who make themselves known following the close of the auction. It goes without saying, that any agreement concluded in such circumstances can only be agreed subject to court approval. That an order for sale, with an ancillary order directing that the sale take place by public auction, should be so interpreted is clearly reflected in the letter written by Mr. Ganly to the Examiner dated 17th September, 2015, wherein he advised that in the event of the reserve not being reached and the properties being withdrawn that negotiations would take place privately thereafter.
25. Fourthly, the procedure for which the defendants advocate is one which would not inure to the benefit of the interested parties and would to my mind prove costly, inefficient and potentially damaging. As is apparent from Mr. Ganly’s evidence in the present case the lands were extensively advertised for sale by public auction. The approach proposed by the defendants would lead to the generation of additional costs, such as the costs attendant upon a further court application, additional professional fees and further advertising costs. All of these would have to be discharged out of the purchase monies and would be incurred in circumstances where there would be no guarantee that any purchaser would be found. Indeed, as was stated by Mr. Ganly in his affidavit, to pursue such an approach would not be in the interests of those concerned with the outcome as parties who were willing to negotiate after auction might in the intervening period lose interest.
26. Fifthly, I reject the defendants’ submissions that the fact that the plaintiff applied to vary the order of the High Court of 6th June, 2013, constitutes an acknowledgment that the actions of Mr. Ganly in negotiating a sale by way of private treaty subject to court approval was unlawful. To my mind it was unnecessary for the plaintiff to bring a motion seeking to vary the order that was made by Feeney J. for the reasons already outlined. All that was required was an order of the Court permitting the sale of the lands by way of private treaty at the purchase price which had been agreed subject to court approval.
27. Finally, the decision in Re Bartlett [1880] 16 Ch.D. 561, a decision to which I will later refer in some detail, lends support to the plaintiff’s submission that where a court directs that property is to be sold by auction and this objective is not achieved, a court appointed auctioneer may continue to conduct negotiations, and, if the reserve is achieved in the course of those negotiations, is authorised to conclude an agreement for the sale of those lands subject to court approval. When approval is sought for the proposed sale interested parties may at that stage voice any objections they have to the relief sought.
Bids v. Contract subject to court approval?
28. Mr. Condon, S.C., on behalf of the third named defendant, conceded that it would have been permissible for Mr. Ganly to have taken bids from any interested purchaser after the auction. Having done so he would have been entitled to seek authorisation from the Court to enter into a binding contract with any such purchaser at a particular contract price. However, he submitted that it was impermissible for Mr. Ganly to have entered into binding contracts for the sale of the lands subject only to court approval.
29. For the reasons already stated I am satisfied that this submission is not correct as a matter of law. However, I also fail to see the logic of this argument. Both options involve an application to court to obtain court sanction and in either instance it would be open to be the defendants to oppose the sale if in a position to demonstrate that the lands were being sold at an undervalue. Thus, I fail to see any prejudice arising to the third named defendant by reason of the fact that Mr. Ganly pursued the normal course for an auctioneer following upon a failed auction. Further, the procedure proposed by Mr. Condon would be both costly and uncertain. The bidder whose bid it is suggested would be brought to court for approval would have no contractual commitment to buy. The court might the particular bid and the bidder might then withdraw.
Was the process of negotiation post auction fair and transparent or was it unfair to the defendants?
30. The trial judge was not satisfied that the principles laid down in Mahomed Kala Mea v. A V Harperink [1908] 25 TLR 180 applied to the present case in circumstances where that judgment was directed to the rights of a purchaser purchasing under a court sale. However, even if the principles laid down in that case were to be applied in the present case, and it would take some small leap to consider that the defendants were in quite the same situation as the purchaser in that case, I am nonetheless satisfied that the defendants have failed to demonstrate any evidence of impropriety as would justify the Court refusing to approve of the sales as proposed by Mr. Ganly.
31. It is not necessary to recite in any great detail the facts in the aforementioned case. Suffice to say that the purchaser of property which was being sold pursuant to a court order was tricked into buying the equity of redemption in the lands in question when he had been advised that he was buying the lands themselves. An application was made to set aside the sale which Lord MacNaghten described as “a lamentable miscarriage of justice.” Regarding court sales, he went on to say the following:-
“But over and above all this there is involved in this case a principle of supreme importance which the learned Judges of the Chief Court entirely disregarded. It has been laid down again and again that in sales under the direction of the Court it is incumbent on the Court to be scrupulous in the extreme, and very careful to see that no taint or touch of fraud or deceit or misrepresentation is found in the conduct of its ministers. The Court, it is said, must at any rate not fall below the standard of honesty which it exacts from those on whom it has to pass judgement. The slightest suspicion of trickery or unfairness must affect the honour of the Court and impair its usefulness. It would be disastrous, it would be absolutely shocking, if the Court were to enforce against a purchaser misled by its duly accredited agents a bargain so illusionary and so unconscientious as this”.
32. While it was not suggested on this appeal that any officer of the Court had acted in a fraudulent or deceitful manner, the Court was urged to consider that what had occurred after the auction was tainted with suspicion to the point that the Court should not approve of any agreement concluded in such circumstances.
33. I am quite satisfied that any party wishing to rely on the aforementioned principles, would bear the burden of proof of establishing, by credible evidence, that the conduct of Mr. Ganly and / or Mr. Curran falls to be considered as tainted with suspicion and further that this conduct had caused them significant prejudice as had occurred to the purchaser in Mahomad Kala Mea. That is a burden that I am satisfied they failed to discharge.
34. As to the conduct that the High Court was urged to consider as suspicious, the third named defendant relied upon the fact that negotiations took place after the auction. This he maintained was unfair to him as he was not invited to engage in the process. I view that assertion to be entirely without merit. At para. 10 of his affidavit sworn on 23rd October, 2015, he stated as follows:-
“When going into the auction, I was asked by a representative of Ganly Walters as to which property I was interested in and I told him that I was interested in the 86 acres at Mitchelstown. After the public auction was over, I became aware that there were negotiations underway between Mr. Ganly and some potential buyers. I was not asked if I wished to make a bid or invited to the negotiations even though Mr. Ganly, as is clear from para. 21 of his affidavit, was aware that I had a keen interest in the lands.”
35. It is accordingly clear that the third named defendant, having chosen not to bid at auction for lands in respect of which he states he had a keen interest, and notwithstanding the fact that he was fully aware that Mr. Ganly was conducting negotiations with other interested parties, chose not to pursue his alleged interest by asking to participate in those negotiations. Had he so participated he would have been in a position to bid for the lands which were of interest to him on the same terms as the other interested parties.
36. It is noteworthy that none of the defendants maintain that they were acting under the mistaken belief that the property could not be sold privately by Mr. Ganly following the failed auction. Further, the second and third named defendants make no assertion that they were unaware of the private negotiations or that they would have wished to participate in them had they known of them.
37. I should state in passing that I view with grave suspicion the averment made by Mr. Stephen Rickard in his affidavit that the reason he did not bid at the auction was because he believed that the plaintiff was willing to settle his claim on the terms proposed by the defendants in the e-mail sent to the plaintiff’s solicitor at 2 a.m. on the morning of the auction. If that was his belief why did he attend or sit through the auction? Why did he not ask Mr. Martin, who had joint carriage of the sale and who had made the offer on the defendants’ behalf, if it had been accepted? Why did he not ask the representative of Ganly Walters, who approached him immediately in advance of the auction to ascertain the nature of his interest in the lands, why the auction was going ahead in light of the resolution of the dispute? Further, he sets out no basis for his belief that the plaintiff was willing to settle the dispute on the terms proposed. What he states at para. 9 of his affidavit is that they were happy to settle the matter on terms which had been agreed between themselves.
38. Having considered the submissions of the parties, I am quite satisfied that the High Court judge was correct to conclude that what happened after the auction was a standard procedure that was conducted in an open, fair and transparent manner. In this regard the High Court judge had the expert evidence of Mr. Ganly that when a property fails to sell at auction it is common practice for any interested parties to approach the auctioneer immediately afterwards if they wish to pursue their interest in that property. There was nothing, as the trial judge noted, to support the assertion of Mr. Martin that the parties who expressed interest post auction were to be considered some type of “preferred purchasers.” None of the defendants claimed to have been unaware of the negotiations, even if Mr. Martin was not aware of the negotiations until they were almost concluded and only the third named defendant asserted any interest in bidding and he chose not to participate at the auction or the negotiations conducted thereafter.
39. For the aforementioned reasons I have no difficulty in concluding that the trial judge was quite correct as a matter of law and fact when he concluded that the defendants had not established that the dealings as between Mr. Ganly and the intended purchasers were tainted with any degree of suspicion whatsoever such as might justify the Court refusing to approve of the sales.
The assertion that the best price was not achieved.
40. The defendants’ argued on this appeal that the High Court judge could not have been satisfied that the sales proposed were at full value and in such circumstances he had no power to lend sanction to what was proposed.
41. The defendants’ first submission in this regard was premised on an averment made by Mr. Ganly to the effect that there were plenty of parties interested in the lands. Having regard to that statement and in circumstances where it was accepted that he had failed to announce his intention to negotiate after the auction the defendants submitted that the Court could not have been satisfied that there were not other parties who had left the auction who were likely to have been willing to negotiate a purchase at figures higher than those put before the Court.
42. It is relevant to recall that Mr. Ganly, in his affidavit of 3rd November, 2015, maintained that the relevant negotiations were conducted in an area where the same would have been readily obvious to anybody interested in the auction. For my part I am satisfied that the High Court judge was asked to make a quantum leap when he was urged to conclude on the basis of the defendants’ affidavits, that the circumstances were such that he would be satisfied that the best price was not achieved.
43. Having considered the decision in Re Bartlett to which I will shortly refer, I am satisfied that the onus was on the defendants to establish to the High Court Judge that it was likely that sanction was being sought for sale at an undervalue and that if put back on the market that an alternative purchaser would likely be found who would pay a higher price. I think this is a convenient point at which to return to consider the import of the decision in Re Bartlett.
44. Re Bartlett was a case concerning the sale of a house on foot of a court order made in the course of the administration of the estate of a Mr. George Bartlett. It would appear from the judgement of Malins V.C. that the Court ordered that the sale be by way of public auction. A reserve price of £18,500 was fixed by the Court based upon the evidence of a valuer. The auction took place on 5th August, 1880. The highest bid was that placed by a Mr. Walker but the bid was below the reserve. A few weeks later he made a formal offer to purchase the property for the sum of £18,000, subject to the sanction of the court being obtained within 10 days. A conditional contract was entered into between the auctioneer on behalf of the parties and Mr. Walker.
45. As was the practice, a summons to confirm the contract was taken out before the Chief Clerk for hearing on the 24th September, 1880. From the judgment I am satisfied that the summons was equivalent to the notice of motion brought before Mr. Justice Keane in the present case. On 24th September, Mr. Aird, a solicitor acting for the parties who were entitled to three quarters of the estate, objected to the confirmation of the contract by the Chief Clerk maintaining that the property had a much greater value than £18,000. The Chief Clerk was urged to postpone confirmation of the contract for a fortnight to allow an alternative purchaser to be found. However, because of the 10 day time limit attached to Mr. Walker’s offer the matter was only adjourned to 29th September. In this regard I would consider that Mr. Aird’s clients were in a situation not dissimilar to those of the defendants when the plaintiff’s application came before Mr. Justice Keane. When the hearing resumed before the Chief Clerk on 29th September Mr. Aird advised that he was in negotiation with a potential purchaser who, he asserted, was willing to buy at a greater price than that offered by Mr. Walker and he sought a further adjournment to allow those negotiations to be completed. However, the Chief Clerk refused that application and confirmed the contract.
46. Mr. Aird’s clients then, similar to the approach of the defendants in pursuing this appeal, applied to have the order of the Chief Clerk approving the sale set aside. By the time that application was heard Mr. Aird was actually in a position to demonstrate the existence of an increased offer which he had since obtained for the sum of £20,000 from a Mr. Mainprice. He also produced an affidavit from a valuer stating that the value of the property was anything between £26,000 and £36,000. In response, the auctioneer who had been appointed to sell made an affidavit stating that in his opinion £18,000 was fair value and more than would probably be obtained if the property were again put up for auction.
47. The Court upheld the decision of the Chief Clerk, and concluded that he had acted entirely correctly when he confirmed the contract. In the course of his judgment Malins V.C. said as follows:-
“The real point I have to decide is what ought the Chief Clerk to have done on 29th September. It was not certain at that time that Mainprice would have come forward, and in that case Mr. Walker’s offer might have been lost. What should I have done in such circumstances? Finding there was one man who had paid a deposit and bound himself to complete the contract, unquestionably, I should not have let him go, on a speculation that some one else might come forward, because Mr. Aird, who had had all this time, from 5th August up to 29th September, had not then brought forward another purchaser who would pay a higher price, and there never was found any one till 11th of October who would give more than £18,000.
I think, therefore, that the Chief Clerk was perfectly right in doing what I should have done myself if I had been asked to confirm the contract. He did quite right not to refrain from confirming the contract upon a mere speculation as to a possible purchaser, when no one knew who the purchaser was, for it appears that the name of Mainprice was never even mentioned until to-day. It would have been most dangerous to have acted upon such a principle.”
48. What also emerges from the judgment is that at the time the Chief Clerk confirmed the contract Mr. Aird had placed no expert evidence before the Court to support his own assertion that he thought he could get a better offer of £20,000.
49. This decision would appear to be authority for two propositions, the first being that when a court makes an order for the sale of property by way of public auction, and the auction proves unsuccessful for whatever reason, such as the fact that the reserve was not reached, the auctioneer appointed by the court is implicitly authorised to negotiate privately with a view to securing a contract for the sale of those lands, subject to court approval. The second is that an interested party, who wishes to object to the approval of a contract for sale agreed in such circumstances, must do more than speculate that a purchaser at a higher price might be found. Material to the court’s consideration in such circumstances will be whether the objector is in a position to put expert evidence before the court to support their contention that the proposed purchase price is at an undervalue. Of like import is whether the objector has been able to identify the existence of any purchaser willing to offer a greater sum than that in respect of which court approval is sought and the period of time that was available to them for such purpose. In Re Bartlett, Mr. Aird, the objector, was noted by the Court to have had all of the period from 5th August, that being the date of the auction, to 29th September, that being the date upon which the proposed contract was put before the Chief Clerk for his approval, but had not proved the existence of a purchaser willing to pay more than £18,000.
50. In the present case the defendants had urged the High Court judge to refuse to approve the proposed sale of the lands based entirely on speculation that there might have been other parties who were interested in purchasing but who decided not to communicate their interest to anybody after the auction or in the days and weeks that followed and who would have been willing to pay more than that agreed following a competitive bidding process between four parties. In my view the decision in Re Bartlett lends full support to the approach adopted by the trial judge.
51. The defendants’ second submission on this issue was that the trial judge had erred in law as Mr. Ganly accepted that the contracts, as signed, reflected a sale of the lands at an undervalue. I reject that submission. There was no evidence before the High Court Judge to establish that the sums offered by the potential purchasers represented an undervalue.
52. Mr. Counihan, S.C., in support of this submission relied upon a statement in Mr. Ganly’s affidavit which he asserted amounted to a concession that the sums on offer for the lands constituted an undervalue. It is correct that at para.17 of his affidavit of the 7th October, 2015, Mr. Ganly advised that had the land been offered for sale on the open market without any interference, the property would likely have realised between €10,000 and €10,500 per acre. However, what Mr. Counihan ignores is that the lands were not being sold on “an open market without any interference”. The background to the sales was fraught with interference and the sales were conducted, as was outlined by Mr. Ganly at para. 16 of his affidavit, under a general air of intimidation. The defendants had, as was stated by Mr. Ganly, planted crops and retained possession in defiance of court orders with the result that vacant possession was not immediately available. It was well known locally that the proposed sales were bitterly opposed by the defendants and that their opposition had led to a reduction in the number of purchasers who might be interested and the prices that might be achieved. This was further evidenced by what occurred at the auction itself when a man rose to his feet to intimidate purchasers by stating that the lands were the subject matter of a family dispute and that anybody who bid for them would be subjected to bad luck.
53. Of perhaps equal significance are paras. 22 and 24 of Mr. Ganly’s affidavit where he referred to his discussion with the third named defendant in the immediate run up to the auction when he was told that any purchaser who bought the lands in question would “have to deal with him for the next ten years”. The best that Mr. Stephen Rickard offered in response to this quite shocking revelation was that he just wanted Mr. Ganly to let any potential purchaser know that if they purchased the lands they would have to live alongside a disgruntled neighbour. This, Mr Rickard maintained, did not amount to the making of a threat. He just wanted any purchaser to know his feelings as a matter of fact. For my part I am quite satisfied that any potential purchaser advised by the auctioneer that their proposed next door neighbour had requested that they be advised that they would remain disgruntled following any purchase might advisedly wish to reconsider their interest in the lands.
54. It was against this backdrop that Mr. Ganly advised the Court that the offers received which reflected an average value of €7,701 per acre “given the entire background to the sale” was, in his opinion, “a very good price overall” and was one which should be accepted. He told the Court that he did not believe that there would be any higher offers if the lands were to be re-marketed and that they might realise substantially less.
55. Of some minor additional relevance in relation to this issue is the fact that on 21st January, 2015, Ganly Walters had guided a figure of €8,000 per acre but following negative feedback from interested parties due to the family dispute, recommended a reserve of €5,000 per acre, albeit to encourage interest. Nonetheless, the Examiner confirmed the entitlement of Mr. Ganly to sell the property at auction subject to a reserve of €5,000 minimum per acre. It is difficult against this backdrop to treat with any merit the submissions made by the defendants that the High Court judge erred in approving the sale of the lands as per the value proposed.
56. For my part I am quite satisfied that the High Court judge correctly concluded that he should reject the defendants assertions that the offers did not reflect the full value of the lands in the market in which they were being sold. Further, as was stated by the trial judge the defendants chose, for whatever reason, not to put forward any expert evidence to support their bald assertion that the lands were being sold at an undervalue. Their failure to do so was to my mind, particularly having regard to the decision in Re Bartlett, a fatal flaw in their opposition to the relief sought by the plaintiff.
57. I also reject the third named defendant’s submission that as a matter of law this Court should overturn the order of the High Court judge having regard to the fact that he only afforded him four days to come up with funds sufficient to purchase the lands contained in folio 20219 of the County of Meath. As Haugh J. stated in Provincial Bank of Ireland v. Farris [944] I.R. 150 at 153:-
“The place and time in which to make the offer is at the Court auction; to hold otherwise would turn the Court proceedings into the real auction and allow the auction itself to be a kind of preliminary canter before the real event – a form of procedure I would hesitate to justify. Special circumstances might justify a late bid after the auction, but no such special circumstances exist in this case.”
58. The third named defendant has not advanced any special circumstances to explain why he did not bid at the auction. Neither did he explain why he elected not to participate in the negotiations which he knew to be taking place in the aftermath of the auction. Further, following the issue of the notice of motion on 8th October, 2015, he gave no indication of his wish to make an offer in excess of that which had been obtained by Mr. Ganly for the lands in which he was interested. It was not until 9th November, 2015, that he first expressed that wish. Further, he put no evidence before the Court to demonstrate that in the four days afforded to him he had sought and been refused funds to meet the requirements of the Court order made on 9th November, 2015. Relevant also is his own affidavit which states that Mr. Martin had been put in funds by the defendants, at least to the extent of the offer that had been made by all three defendants, on 29th September, 2015. To assert that the opportunity afforded to him on 9th November, 2015, was in some way unfair to the point that this Court should interfere with the order of the High Court judge is simply untenable.
59. Finally, as to the refusal of the High Court judge to permit the service of notices to cross examine, I entirely accept that the law would favour granting such relief if the presiding judge is satisfied that there are conflicts of fact that need to be resolved before the Court might otherwise lawfully and justly determine the issues before it. However, in this case, particularly having regard to the contents of the affidavits before the Court and Mr. Ganly’s concession as to the time at which Mr. Martin was first contacted after the auction, I am satisfied that the High Court judge was correct when he concluded that there were no factual matters that needed to be resolved by cross examination for the purposes of enabling him to fairly adjudicate on the application before him.
Conclusion.
62. This is indeed a difficult and troubling case. The forced sale of land against the wishes of its owners is bound to cause great upset to those involved. All the more so in a case where it is one family member that pursues that relief against his siblings.
63. The attachment of these defendants to their land in entirely understandable. However, is not acceptable that a person such as the plaintiff, who has wanted to sell his interest in lands which were owned by a partnership which terminated in 2006, should have his path blocked and obstructed by his former partners with the result that he has spent years engaging with the Court in order to achieve his lawful entitlement. In this case the plaintiff’s entitlement to the partition and sale of the lands was established as far back as 16th December, 2010. After years of non co-operation on the part of his siblings, he eventually obtained an order for sale in June, 2013 and has still not achieved his objective.
64. Of course it has to be recognised that the defendants enjoy a constitutional right of access to the courts and that this includes not only a right to defend any proceedings brought against them but also their right to appeal any decision made by the High Court. Regrettably, however, their conduct has at times far exceeded their legal entitlements and they have wilfully obstructed the sale of these lands. The manner in which they achieved their objective is earlier referred to and will not be repeated here. In so doing they have acted not only to the detriment of the plaintiff but have acted to their own detriment in that significant costs have been incurred which would otherwise have been avoided. Hopefully, this judgment will close the final chapter to this difficult and tragic saga.
65. I would dismiss the appeal.