S62 Kelly v Ewing [2014] IESC 62 (07 November 2014)


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Supreme Court of Ireland Decisions


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URL: http://www.bailii.org/ie/cases/IESC/2014/S62.html
Cite as: [2014] IESC 62

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Judgment Title: Kelly v Ewing

Neutral Citation: [2014] IESC 62

Supreme Court Record Number: 60/2008

High Court Record Number: 2006 198 SP

Date of Delivery: 07/11/2014

Court: Supreme Court

Composition of Court: Denham C.J., Murray J., McKechnie J.

Judgment by: The Court

Status of Judgment: Approved

Judgments by
Link to Judgment
Result
Concurring
Denham C.J.
Murray J., McKechnie J.


Outcome: Dismiss




THE SUPREME COURT
Appeal No. 060/2008

Denham C.J.
Murray J.
McKechnie J.
      In the matter of Folio 1347 of the Register of Freeholders County Galway, and In the matter of Judgment Mortgages registered thereon, and In the matter of a Well Charging Application, And In the matter of s. 153 of The Chancery (Ireland) Act 1867 as preserved by s. 1 of The Statute Law Revision (No. 2) Act 1893 and s. 9(5) of The Succession Act 1965
      Between/
Anthony Kelly
Plaintiff/Respondent
And


Robert Ewing sued in his personal capacity and sued in his capacity as personal representative of William Ewing Deceased


Respondent/Appellant

Judgment of the Court delivered on the 7th day of November, 2014, by Denham C.J.

1. This is an appeal by Robert Ewing, against whom the proceedings were brought in his personal capacity and in his capacity as personal representative of William Ewing, deceased, the respondent/appellant, referred to as “Mr. Ewing”, from the order of the High Court (Laffoy J.) made on the 19th June, 2007, perfected on the 1st February, 2008, and the report of the judgment by Laffoy J. made on the 3rd March, 2011.

2. Anthony Kelly, the plaintiff/respondent, is referred to as “Mr. Kelly”.

3. At the core of this appeal are five judgment mortgages in respect of which relief was sought, arising from orders for costs and damages against Mr. Ewing and/or his father, the late Mr. William Ewing, which in themselves arose from protracted proceedings between the parties relating to the sale and transfer of the disputed lands from the late Mr. William Ewing to Mr. Kelly in or around 1983. These particular proceedings arise from a special summons issued on the 15th May, 2006.

4. On the 19th June, 2007, the High Court found sums due and owing to Mr. Kelly by Mr. Ewing, being the sum of €133,834.16, together with interest at the appropriate statutory rate until payment from the 12th June, 1996, the 22nd July, 1997, the 31st October, 2001, the 19th December 2000, and the 16th May, 2000, respectively. The High Court ordered:-

      “IT IS ORDERED that in default of payment to [Mr. Kelly] of the said sum together with interest on the said principal sums at the appropriate statutory rate until payment and the costs hereinafter awarded within 3 months from the date of service of this Order the lands outlined in Red and marked “B” on the map exhibited at AK in the Affidavit of [Mr. Kelly] sworn on the 18th day of December 2006 and filed in Court on the 20th day of December 2006 be sold at such time and place subject to such conditions of sale as shall be settled by the Court and the following Account and Inquiry are to be taken and made in the Examiners Office.
            1. An account of all incumbrances subsequent as well as prior to and contemporaneous with [Mr. Kelly’s] demand

            2. An Inquiry as to the respective priorities of all such demands as shall be proved

      And IT IS ORDERED [Mr. Kelly] do have the costs of and incident to this application and Order and the proceedings hereunder when taxed and ascertained in equal priority with this demand.”
5. In a document dated the 3rd March, 2011, Laffoy J. gave a report on the judgment of the 19th June, 2007. At p. 7 of that report it is stated as follows:-
      “The judgment and order of the High Court and the reasons for it

      [Mr. Kelly’s] application was determined on the basis of the affidavit evidence before the Court. Mr. Ewing’s application for the matter to be heard on oral evidence was refused. There was no conflict on so much of the affidavit evidence as was material to the reliefs sought by Mr. Kelly on the application.

      The order of the Court as perfected on 1st February, 2008 properly reflects the judgment and order of the Court.

      First, the Court made the ‘well charging’ order sought by Mr. Kelly, in that it declared that the principal monies and interest thereon secured by the judgment mortgages registered at entries 5, 6, 7, 8 and 9 on Part 3 of Folio 1347 and the costs of the registration of the judgment mortgages and the costs awarded by the Court stand well charged on the interest of Mr. Ewing personally or in his capacity as personal representative of William Ewing, deceased, on the Ewing interest plot being part of the lands registered on Folio 1347.

      Secondly, the Court made a finding as to the amounts due for principal and interest on foot of the said judgment mortgages, which corresponded to the sum specified for principal on the relevant entry on Part 3 of the Folio together with interest on each of the said sums at the Court rate in each case from the date of judgment. I note, however, that in relation to the judgment mortgage at entry 6, the principal sum set out in the order, the Euro equivalent of IR£19,375.42, differs from the figure set out at 2(b) in the endorsement of claim on the special summons. I assume that the explanation for the difference is that the monies secured by the order made by Kelly J. on the appeal in the Circuit Court equity proceedings on 27th July, 1997 included damages in the sum of IR£500 as well as costs. Thirdly, it was ordered that, in the event of default of payment of the principal sums, which aggregated €133,834.16, and the interest and costs declared well charged within three months from the date of service of the order, the reduced plot to be sold through the Court. The order for sale reflected the concession made on behalf of Mr. Kelly in the affidavit of 18th December, 2006 in limiting the sale to the reduced plot. Fourthly, it was ordered that the usual account and inquiry which is conducted in the Examiner’s Office in a mortgage suit should be conducted, that is to say, an account as to encumbrances and an inquiry as to their respective priorities.

      Finally, an order for costs was made in favour of Mr. Kelly.

      One of the reliefs sought by Mr. Kelly, that is to say, an order for possession of the Ewing interest plot was not granted because it was not appropriate to make an order for possession at that stage in a mortgage suit founded on a judgment mortgage.

      As I understand it, apart from the sum of IR£500 damages awarded on the High Court appeal in the Circuit Court equity proceedings to William Ewing, all of the monies secured by the judgment mortgages represented costs and in all cases the costs had been taxed. On the basis that all of the costs had been subject to taxation, the Court rejected Mr. Ewing’s assertion that the monetary claims were inflated.

      I believe that the note prepared by Mr. Kevin Rooney of K. J. Rooney & Co., the solicitors for Mr. Kelly, which was lodged in the Supreme Court office on 5th March, 2009, of the observations I made in giving judgment is accurate. I gratefully adopt Mr. Rooney’s note. In particular, I emphasised that the terms of the order were to be the usual terms of a ‘well charging’ order in a mortgage suit.”

6. Mr. Ewing filed a notice of appeal dated the 28th February, 2008. In that document Mr. Ewing raised issues of harassment, malicious intent, attack on religion, emotional abuse, re-occurrence of harassment, unsafe evidence, no evidence, matters of general importance, ghettoisation, social order, appropriate orders, a human rights issue, compensation and striking out, Article 43.2 of the Constitution, time limitation and costs, degrading punishment, Article 3, negation of dwelling, Article 8, demeaning of opinion, Articles 9 and 14, destruction of domestic environment, Article 1 of Protocol 1.

7. The Court received full written submissions from Mr. Ewing, which it has considered carefully.

8. The Court also heard oral submissions from Mr. Ewing. In oral submissions Mr. Ewing stressed three matters:-

        (i) The service of the special summons in these proceedings.

        (ii) That there was no regard to true social order.

        (iii) The concession in the High Court.

Service of Summons
9. The submissions in relation to the service of the summons were considered carefully. Mr. Ewing said that the summons had not been served on him. However, I am satisfied that this ground of appeal fails. Mr. Ewing entered an appearance, took part in the High Court proceedings, filed affidavits, and addressed issues in the High Court. There was no issue as to the service of the summons raised in the High Court. In addition, the endorsement on the High Court special summons states that it was issued by K.J. Rooney & Co., whose registered place of business is Colonial Buildings, Eglinton Street, Galway, Solicitors for the plaintiff, Mr. Kelly, who resides at Grange Park, Loughrea, Co. Galway, and who is a farmer. The affidavit is endorsed and signed by Niall Rooney of Colonial Buildings, Eglinton Road, Galway, and it is stated that the summons was served by Niall Rooney at Abbeyville House, Kilnadeema, Loughrea, Co. Galway, on the defendant, Robert Ewing, on the 7th day of September, 2006, and indorsed on the 8th September, 2006.

10. As Mr. Ewing filed an appearance and took part in the High Court hearings, if there had been any imperfection in the service of the special summons, which does not appear to be so, any such imperfection has been cured. Thus, the appeal on this ground fails.

No regard for true social order.

11. The issue of “true social order” was raised in the High Court by Mr. Ewing, unsuccessfully. This matter was raised before this Court in the written submissions of Mr. Ewing.

12. It was submitted at Part L 1 of the appellant’s notice of appeal that:

      “Social order is commonly indicated by residence, and these proceedings, rather than specifically allege that [the appellant’s] occupation of the dwelling is inconsistent with requirements of true social order (i.e. by way of claim that such alleged costs should be paid and are unlikely to be paid any other way), generally allege such inconsistency (i.e. by way of claim that the [appellant] is not the appropriate person to continue possession or continue to have rights in the dwelling as presently constituted), and do so with evidently callous disregard for both the [appellant’s] upgrade and renovation of the dwelling, and the nature of his legal concerns as its custodian - a disregard, in fact, for [the appellant] being its worthy custodian.”
13. Mr. Ewing also submitted at Part L 2 of the notice of appeal that:-
      “The relevant issue of the appropriateness of a landmark property such as the dwelling being occupied by a non-native person with divided cultural sympathies, is answered by way of reference to the [respondent’s] unconscionable claim for possession or sale of the dwelling (i.e. the claim of the local malcontent pertaining to such issue in this particular case), for such callousness suggests that as far as such issue can be decided by these proceedings, the [respondent’s] claim is immoral and fails.”
14. In oral submissions Mr. Ewing said that the learned trial judge had not taken into account the concept of true social order. Mr. Ewing said that it was the principle issue, with deviation and concession, and that his views were not taken into account. He said that he was not in a dignified situation, which implied that he was not dignified.

15. As to this aspect of the appeal, it was submitted that the issues before the learned High Court judge were set out in her report. There have been five sets of proceedings, including these proceedings, in which matters relating to the dispute between Mr. Kelly and Mr. Ewing were addressed and decided.

16. It being pointed out to counsel that Mr. Ewing had raised the issue that the learned High Court judge should have taken into account “true social order”, counsel replied that “true social order” relates to the dispute between Mr. Ewing’s father and Mr. Kelly, and between Mr. Ewing and Mr. Kelly.

17. On being pressed by the Court that it was not so, but that it was the impact the order of the High Court would have on his dignity and character, counsel for Mr. Kelly replied that the issue was the possession of the land.

18. Counsel for Mr. Kelly submitted that there was fairness in court proceedings, especially for lay litigants, but that the matter before the High Court was a well charging order, and that it was dealt with in accordance with law.

19. The issue of true social order, as argued by Mr. Ewing, is not relevant to these court proceedings, which must be, and were, carried out in accordance with the law. The issues raised in the proceedings were identified by the High Court and were determined in accordance with law. Consequently, this aspect of Mr. Ewing’s appeal fails.

Deviation and Concession
20. In the High Court, by an affidavit sworn on the 18th December, 2006 by Mr. Kelly, on the basis of valuations identified in the affidavit, Mr. Kelly made a concession that he would accept part of the lands, marked “B” on an attached map, being 2.522 acres. He deposed:-

      “4. I now submit to this Honorable Court the said valuation of Michael Regan Auctioneering Limited dated 18th December 2006 with the said amended map comprising an area of 2.522 acres or thereabouts statute measure (1.021 ha.) upon which together marked AK I have signed my name prior to the swearing hereof and wherein he has valued the said plot of ground at approximately €300,000.

      5. I estimate and am advised that a sum of approximately €133,200 would be required to discharge the taxed party-and-party costs awarded to me in the various Orders for costs referred to in these proceedings and that statutory interest thereon would be in the region of approximately €60,000 as of the date hereof, giving a total of €193,200. I further estimate and am advised that the total due to me by the defendant on foot of costs and interest thereon by the 30th October 2007 would be €195,000 approximately and that the costs of these proceedings (if awarded to me), and the costs and expenses of selling the said plot of land comprising 2.522 acres would be likely to come to an additional sum of approximately €40,000.

      6. I ask this Honorable Court to grant the relief sought.”

21. On foot of that concession the High Court ordered:-
      “IT IS ORDERED that in default of payment to [Mr. Kelly] of the said sum together with interest in the said principal sums at the appropriate statutory rate until payment and the costs hereinafter awarded within three months from the date of service of this Order the lands outlined in red and marked ‘B’ on the map exhibited at AK in the affidavit of [Mr. Kelly] sworn on the 18th day of December 2006 and filed in court on the 20th day of December 2006 be sold at such time and place subject to such conditions of sale as shall be settled by the Court and the following Account and Inquiry are to be taken and made in the Examiners Office …”
22. Mr. Ewing objected to the deviation and concession. He returned to the issue of dignity, to keep the land in one piece: that the property not be undignified by slicing it in half. Mr. Ewing saw this deviation as an attack on his character. He said that it was not a concession, that the deviation was a partition of the property. He said he could not go along with a concession that was not a concession. Mr. Ewing said that the learned trial judge should have realised that he would resist the deviation. Mr. Ewing argued that the learned High Court judge should not have divided the property. During the hearing of this appeal Mr. Ewing said that he objected to the deviation/concession by the learned trial judge regarding the property. He pointed out that he still lived in the dwelling.

Motion to enlarge time and motion to vary
23. On behalf of Mr. Kelly a motion was brought, dated the 6th May, 2014, before the Court seeking to enlarge time for the service of a motion to vary the decision and order of the High Court, the decision having been delivered on the 19th June, 2007, and the order having been perfected on the 1st February, 2008.

24. A motion was also brought, on behalf of Mr. Kelly, dated the 11th June, 2014, seeking to admit further evidence.

25. The background for both motions was that based on the affidavit of Mr. Kelly sworn on the 18th December, 2006, the total sums due and owing were then capable of being discharged by the sale of a reduced plot of land, comprising 2.522 acres, which excluded Abbeyville House. This was based on a valuation certificate of Michael Regan. This was the concession/deviation, upon which the High Court made its order. However, in the affidavit grounding the motion, Kevin Rooney deposed that the order for sale of the High Court is no longer capable of realising the sums secured by way of judgment mortgage against Mr. Ewing, as the market value of the lands had declined and the sum secured by the judgment mortgage has increased because of the accrual of interest.

26. In bringing these motions, counsel for Mr. Kelly referred to and relied upon MD v. ND [2011] IESC 18 where the Court allowed new evidence as to the charging value of agricultural land. However, I would distinguish that case as it was a family law case, by its very nature it was not a final order.

27. It was a very different situation to the circumstances of this case. In this case Mr. Kelly made a concession, and the High Court did what was asked by Mr. Kelly. Admirably, Mr. Kelly did not want Mr. Ewing to lose his home.

28. On this motion Mr. Ewing did not propose to put in his valuation of the lands before the Court now.

29. On the issue of the concession, I would not go behind the judgment and order of the High Court.

30. While all the lands are well charged, I would not on this appeal re-visit the issue of the concession made to, and the order of, the High Court.

31. It is noteworthy that all the monies due, except €500, arise from costs, arising from decades of litigation, which have been taxed.

Conclusion
32. In all the circumstances, I would dismiss the appeal, and the two motions, and affirm the order and judgment of the High Court.


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