Malone v. McQuaid [1998] IEHC 86 (28th May, 1998)

2. In or about the month of May or June 1986 (the exact date remains unclear) a commercial property ("Scope House") comprising a number of lettings was purchased in the name of Ms Malone for a declared price of £120,000 plus V.A.T. of £12,000. There was an issue as to whether £50,000 was paid "under the table". Such record of the contract as has been made available to the court is undated but the evidence has made it clear that the original closing date (25th April, 1986) was not adhered to. The property was purchased from Scope Construction Limited and on 31st December, 1986 Rory Burgess as Director swore a Land Registry affidavit certifying that the said company as beneficial owner transferred the entire beneficial interest in Scope House to Ms Malone by transfer dated the 31st December, 1986. On or about that date Ms Malone became registered owner of Scope House.

3. In his capacity as liquidator of Greendale, the Defendant obtained judgment against Mr Fagan in the sum of £456,062.69 on the 12th March, 1996 and on the 16th May, 1996 registered that judgment as a mortgage against his alleged (unregistered) equitable interest in and beneficial ownership in whole or in part of Scope House. In the course of the Affidavit to register the Defendant swore "the said lands are registered in the name of his wife, May Malone, but I believe that the said Stephen Fagan has disposing power over the same".

5. The Plaintiffs assert that Mr Fagan does not have and never had an equitable or beneficial interest in all or part of Scope House; they allege breach of a duty of care to Ms Malone on the part of the Defendant in and about the registration of his judgment; they allege that the registration prevented completion of the sale of the lands to Donato Borza and claim damages under the headings of negligence, recklessness (which became slander of title during the course of the hearing) and interference with contract by unlawful means. The Plaintiffs' Counsel also made submissions on the basis that the registration constituted misfeasance.

9. The issue as to whether this judgment was indeed the fruit of fraud was raised in separate proceedings entitled The High Court between Stephen Fagan Plaintiff/Respondent and Liam McQuaid Defendant/Applicant. An application by the Defendant/Applicant in those proceedings to have the same struck out pursuant to Order 19 Rule 28 of the Rules of the Superior Courts, or alternatively, pursuant to the inherent jurisdiction of the Court to do so, came on for hearing before Mr Justice O'Higgins who delivered a comprehensive and careful judgment on the 12th May, 1998 in which he acceded to the Defendant's application upon the basis as he said at page 20 of his unreported judgment "... there would be no reasonable chance of the judgment being set aside".

10. In the circumstances the issue now sought to be included as an issue in the proceedings which I have heard has already been the subject of a ruling striking it out of the proceedings before Mr Justice O'Higgins. Furthermore, as between Mr Fagan and the Defendant in these proceedings, it seems to me to be impermissible that as between these parties the same issue should be tried in two different sets of proceedings. Accordingly, I refuse leave to file the proposed defence and reply to the amended defence and counter-claim.

13. In addition an issue arose as to whether a further £50,000 was paid "under the table" for Scope House. In relation to the loan of £100,000 the Defendant contended that whilst it was lent by the AIB as a matter of form to Ms Malone, in reality it was lent to Mr Fagan. Part of the security for this loan was a lien on a bank account in the name of Ms Malone containing £76,000 on the 16th May, 1986 but the Defendant further contended that these monies were actually provided by Mr Fagan. The Defendant also contended that the repayment of this loan was undertaken by Mr Fagan rather than by Ms Malone because he wholly organised and administered the lettings in Scope House, dealt with the tenants and the banks and in effect treated Scope House as his own property. For example, in October, 1986 he required cash for his own businesses and set up an arrangement which was agreed to by the bank whereby the £76,000 in Ms Malone's account would be released from the bank's lien in exchange for a guarantee in that amount by Mr Fagan together with further security. This arrangement although fully approved on paper was never implemented in practice, but the Defendant says that, notwithstanding, it illustrates the point that Mr Fagan treated Scope House as his own property because in fact that is what it was. They say that there is authority to show that once there is an arrangement between the registered owner of a property and another party that the latter would undertake the repayment of the mortgage repayments, this of itself entitles him to a share in the value of the property proportionate to the amount of those payments. This is exactly what Mr Fagan did, according to the Defendant.

17. A further issue arose in relation to a claim that a further £50,000 was paid "under the table". The Defendant says that this is money which must have come from Mr Fagan but they also say that because it was clearly an iniquitous attempt to defraud the revenue, it would defeat the presumption of advancement which might otherwise operate to establish Ms Malone as the beneficial owner of the monies received from her husband.

18. Furthermore, with further reference to the presumption of advancement, the Defendant argues that this doctrine is not available so as to benefit the Plaintiffs because Ms Malone's primary case and evidence here is that she herself provided the purchase monies and that if I do not accept this then I cannot as a matter of equity apply a presumption in her favour if I find that contrary to her evidence the monies were supplied by her husband, because this would be to allow a claimant with unclean hands to benefit from an equitable remedy.

21. She is aged 51 and has four children with Mr Fagan aged between 16 and 24. In 1969 she ran a hairdressing shop which she owned while she was continuing work as a secretary. In 1973 she sold the lease in the shop for £3,000 and invested it in Irish Life. An issue arose as to whether she actually owned the shop as claimed or whether it was owned by another lady called Annette as contended by the Defendant. Subsequently, and after the Plaintiffs' case was closed a witness turned up, apparently fortuitously, who happened to be her brother-in-law, namely Mr Frank Johnson, who dealt primarily with the investment by the Plaintiffs in Irish Life policies. However, he confirmed that his wife, named Annette, was working for Ms Malone in this hairdressing salon and he confirmed that Ms Malone owned it.

22. Ms Malone gave evidence that she and her husband used to own and race greyhounds up to the mid eighties. She claimed that the profits were put into the Irish Life policies but there are no records. She said that she and her husband sold toys, her contribution being the making of santa claus parcels. She had stalls, she said, one in the Phoenix Park, one in the Top Hat Ballroom in Blackrock, and one in Meath Street from which she sold these toys. Her husband was selling cars but she claimed that she put money into this enterprise although she could not recall how much. Her husband had a video business, which he operated in the early 1980s. He would go to England a lot. He did one very good deal there with Polygram. She said that she cashed in her insurance policies which were in her children's names and put this money into the video business. There would have been £5,000 for each of the children amounting to probably £20,000. She claims she funded this deal. Subsequently she said she got the profits out of the insurance policies and put it into an account to help her to purchase Scope House. She accepted that by the mid 1980s she became less involved but did work occasionally. She said that she was a shareholder in Greendale and she also provided money to that company which she borrowed on the security of Scope House. The amount she invested in Greendale was £200,000. She got nothing back. Between 1984 and 1986 she took money out of Irish Life and put it on deposit with the AIB.

23. In 1986 she met Rory Burgess who had Scope House for sale and who wanted to know whether her husband was interested in buying it. She decided that she would buy it for herself using the children's insurance policies. It would provide her with a rental income and security eventually for her old age. She got a loan from the AIB of £100,000 which was lent to her and her alone. The security was a charge on the premises itself, a lien on the deposit account and she thought that her husband had guaranteed the loan as well. (As already indicated this was not accurate). She said that she had previous dealings with the AIB in 1984 and had guaranteed a loan of £70,000 for her brother-in-law Sean Fagan. In relation to the deposit of £10,000 she accepted that she could not remember from what account it came. She said that Stephen, her husband, had often given her money but added that she would be only guessing if she tried to say which account it came from. In relation to the additional £22,000 (including £12,000 V.A.T.) she said it came from the video business in England and in particular from the deal with Polygram.

24. She said that the bank loan was paid off from rental income from the Scope House tenants but that this was not enough to repay the loan and the balance was taken out of an overdrawn account. She said that in 1996 she decided to sell Scope House because she was in difficulties in repaying the mortgage on her home and wanted to settle this. She was not sure how much was owed but it could have been £40,000 or more. The monthly payments were over £2,000. There were also legal fees due to a solicitor of £55,000. She also had legal costs arising out of the judgment in the Greendale matter and the appeal from that judgment. She was undergoing pressure to pay school fees and college fees and had to borrow from members of her family and pawn jewellery.

25. She had a contract to sell Scope House to Donato Borza in May of 1996. The negotiations were largely conducted by her husband but she was present and it was she who was selling. She accepted in cross-examination that she agreed to accept a further undisclosed £80,000 as part of this purchase price. She first learned that the Defendant had registered his judgment against her husband's claimed interest in Scope House when she was about to complete the sale to Donato Borza and because of this and the other charges against Scope House, she decided not to sell because the sale would have been of no benefit to her.

26. She availed of the 1993 Tax Amnesty with her husband but not the 1986 Amnesty. She produced a certificate in relation to this furnished by the Revenue Commissioners. On cross-examination, she insisted that income from the Scope House rental was her income. She accepted that the tax submission for the 1993 Amnesty was in joint names with her husband. She accepted that she could not remember many of the specific details of her various business transactions over the years and she also accepted that her husband was the entrepreneurial leader in these ventures and acted as her agent and on her behalf to a very great extent generally and in particular with regard to the purchase, lettings and all dealings in connection with Scope House. The Tax Amnesty Return made no reference to the income from the Irish Life policies, but she explained this by stating that her understanding was this income was taxed at source and therefore did not need to be included. She claimed that the £76,000 lodged in the AIB account in May of 1986 was money which she took from the Irish Life policies. She denied paying £50,000 "under the table" but accepted that she paid an extra £10,000 to have some work done by Rory Burgess. She recalled that her husband Stephen, had paid £40,000 to Rory Burgess for, she thought, a site for a public house in Clondalkin. She had nothing to do with that.

27. She insisted that she was present when she was getting the loan of £100,000 from AIB. With regard to bank documentation which suggested that her husband had told AIB officials that he was purchasing Scope House in his wife's maiden name because he did not want the tenants to know that he was the owner, she said that the details in relation to tenancies in Scope House were inaccurate and she insisted that she herself personally purchased Scope House and that she was not holding it in trust for her husband. The hairdresser was called "Annette's" because she did not want the clients to know it was hers but the hairdresser's premises was in fact her own property. She purchased Scope House in her maiden name because she wanted it for herself.

28. Some confusion arose in relation to a letter from Irish Life in relation to life policies. She insisted that some of the policies referred to in their letter of the 8th August, 1996 were in fact not hers at all, and she also insisted that there were other policies not included in that letter which she had with that company. This piece of evidence was subsequently independently corroborated by Frank Johnson who confirmed that he used to work for Irish Life, that they did not always hold records beyond a period of ten or twelve years once the policies had been fully encashed, that he had dealt with Ms Malone and Mr Fagan in relation to policies, that their investments, usually if not always in joint names, had done extremely well in the 1970s and 1980s achieving a value of perhaps £200,000 plus in all. He also said in answer to a question from myself that he thought that there would have been other policies than those disclosed in the Irish Life letter of the 8th August, 1996. When it had been put to Ms Malone in cross-examination that not a single one of the documents discovered could be demonstrated as the source of the monies lodged in the AIB bank account in her name on the 16th May, 1986 (the £76,000), she had answered that there were other policies with the Irish Life which she could not get details of. In this she was subsequently corroborated by the evidence of Frank Johnson.

29. She insisted repeatedly that the policies were her children's and did say that the policies were in the joint names of herself and her husband. At one stage when it was put to her that as between herself and her husband the policies were treated as the proceeds of their life's work and as belonging to both of them, she replied that it did not matter as everything "has been treated as belonging to the two of us". It did not follow, however, that the £76,000 belonged to both of them because he had taken money for the video business or other things and for Templeogue Bridge which she had no interest in. Actually the money belonged to the children. She accepted that Stephen was the ideas man who came up with ideas of how money could be made and was an entrepreneur. She acknowledged that Stephen had wanted to acquire for his own purposes the £76,000 in the AIB account but insisted that he would not be able to get it without her signature. She also added that if he needed it she would have released it. In fact it was not released.

30. Another project involving a proposed purchase of a property known as Rafters which never came to fruition, would have involved probably putting up Scope House as security. She had initial difficulty in recalling the circumstances surrounding some very large withdrawals totalling £160,000 from her bank account in the winter of 1990/1991, but subsequently remembered that these were payments made to Greendale about the time she was having trouble with the Revenue.

31. She had no idea of the source of £14,000 lodged on the 21st August, 1989 into the AIB mortgage loan account. It was so far back she could not remember and she did not know if the lodgment was made by her husband. She accepted that she made a side agreement with Donato Borza for a further £80,000 for the sale of Scope House. She was desperate for money and she knew it was wrong. There was no written document recording the £80,000. She did not get it because the sale did not go through. She was strongly challenged on her assertion that she was the owner of the hairdresser known as "Annette's" in the 1970s. She was presented with a Thom's Directory reference that as of 1971 the owner was Annette Fagan. She maintained that Annette worked there, that she did not work there but that she was the true owner. With regard to the Thom's reference she claimed that it could not be right. (As I have already indicated in this she was subsequently corroborated by Frank Johnson).

32. To put Ms Malone's evidence in context I should note that her insistent assertion that it was she and she alone who was the borrower of the £100,000 from the AIB and the owner of the entire beneficial interest in Scope House, was supported with emphasis by Dan O'Driscoll who was the Manager of the relevant branch of the AIB. He was called under subpoena by the Defendant and whilst I formed the impression that he was reluctant to give evidence perceived as adverse to the interests of Ms Malone or Mr Fagan - indeed he accepted that he went for the occasional drink with Mr Fagan's brother Sean Fagan but only in the course of business - I nonetheless accept that his evidence was truthful. He repeatedly insisted that the bank loaned the money to Ms Malone and to nobody else and that he had to deal with Ms Malone to clear all major decisions in relation to this account although the day to day business and detailed management was done by Stephen Fagan.

34. It is no reflection on the reliability of Ms Malone's evidence to conclude that she was vague if not extremely vague as to detail. She admitted as much herself on many occasions. She is an intelligent 51 year old woman with considerable experience of the world in her own right and, in my view, on good and co-operative terms with her husband. She has been under enormous pressure as a result of the collapse of Greendale and proliferating litigation. I felt that I had to treat her evidence carefully, in the main because she was as sheadmitted herself, quite vague and unsure as to detail and partly also because she was clearly under pressure and had a considerable interest in the outcome of the proceedings. Counsel for the Defendant submitted strongly that the evidence she gave in the witness box conflicted in points of detail and some of substance with averments she made in earlier affidavits. My view is that the vast majority of these conflicts are explained by her own obvious lack of grasp of detail and vagueness due to a great extent by the lapse of time between the events now under scrutiny. There were some contradictions in her evidence and it did conflict in some points of detail or emphasis with her affidavits. I must also bear in mind, however, that she admits to being vague. Also and significantly, on a number of points which were controversial her evidence was subsequently corroborated by other witnesses whose evidence I accepted. I have had the benefit of seeing Ms Malone in the box during a lengthy examination and cross-examination. I would not describe her as scrupulously accurate or punctilious but equally I do not think that she set out at any point deliberately to mislead the court. I am not prepared to ascribe to her any deliberate or iniquitous intention to mislead the court although I did conclude that I must treat her evidence with care and have regard to documentary evidence and independent testimony in reaching specific conclusions in relation to the meaning and intent behind the several money transactions referred to in the foregoing. I have set out in some detail, my assessment of the credibility and reliability of this witness because I am aware that these conclusions will have particular relevance when I come to consider the presumption of advancement.

36. In the "application for personal advance" dated 16th May, 1986 which is a standard form discovered by the Allied Irish Banks, Ms Malone's application for the £100,000 mortgage is dealt with. Under the heading "specific purpose of this application" there appears the typed statement "purchase and investment property, Scope House, Quarry Drive, Whitehall Road West, Terenure costing £120,000 plus V.A.T. £12,000. Deposit £10,000 already paid". Under this in manuscript appears "(+ £50K 'under the table')".

37. This form was prepared by Dan O'Driscoll who gave evidence. When asked about this reference to £50,000 "under the table" he said he did not put it in himself, knew nothing about it, and indeed these words did not appear on the copy of that document which he kept in his file. The document is copied in triplicate and he keeps one copy which did not have the writing. He accepted that the words appear to have been put in by somebody else in the bank but as far as he was concerned the purchase price was £120,000 plus V.A.T. of £12,000.

38. When asked about this Ms Malone denied that £50,000 was paid "under the table". She admitted that she paid an additional £10,000 but this, she said, was for works to be done by Rory Burgess. At the same point in her cross-examination she referred to a further £40,000 which she understood was paid by Mr Fagan to Rory Burgess, but this was, she believed, for a pub site in Clondalkin which had nothing to do with her. The money was paid around the same time.

39. It will be recalled that Rory Burgess certified in the Land Registry Certificate that the purchase price was £120,000. Towards the end of the case I recalled Rory Burgess and asked him specifically what price he had received for Scope House and he said unequivocally that the price was £120,000. I referred him to the reference in the bank documentation and he firmly insisted that there was no extra £50,000 "under the table". I accept this evidence but I have to add that it is a matter of concern to me that Mr Fagan, himself a Plaintiff in these proceedings, did not give evidence. He was present throughout the twelve days of hearing in court and was clearly able to give instructions and clarification to Counsel as it was needed from time to time. There is no love lost between Rory Burgess and Stephen Fagan and I did have my suspicions about whether extra money was in fact paid "under the table". I accept, however, that Rory Burgess was telling me the truth and accordingly I hold that the purchase price was £120,000 and that no extra £50,000 was paid "under the table".

40. The first point that arises is whether the doctrine of the presumption of advancement is an equitable doctrine as contended by Mr Traynor for the Defendant or as submitted by Dr Forde for the Plaintiff simply a rule of evidence. The importance of the point in the present case arises because Mr Traynor submits that an equitable doctrine should not apply if the court rejects the evidence of Ms Malone to the effect that she provided the monies in their entirety for the purchase of Scope House or in the alternative, if the court accepted that £50,000 was paid "under the table", because in these circumstances the doctrine would be applied to produce results that were inequitable.

"The equitable doctrine of advancement, as applied to transactions between husband and wife, has the effect that when a husband (at least where the circumstances show that he is to be expected to provide for the wife) buys property and has it conveyed to his wife and himself jointly, there is a presumption that the wife's paper title gives her a beneficial estate or interest in the property. Unless the presumption is rebutted by evidence showing a contrary intention on the part of the husband at the time of the transaction, he will be deemed to have entered into the transaction for the purpose of conferring a beneficial estate or interest on the wife. That estate or interest is treated in law as an advancement, that is to say, a material benefit given in anticipation of the performance by the husband of his duty to provide for the wife.

The presumption of advancement in those circumstances is, of course, rebuttable. For a rebuttal to be made out, it is for the husband to show, by reference to acts or statements before or around the transaction, that a beneficial interest was not intended to be conveyed in the circumstances relied on. As to subsequent acts or statements, the authorities show that they are admissible in evidence against the party making them, but not in his or her favour. Thus, subsequent acts or statements on the part of the wife are admissible in evidence to rebut the presumption of advancement."

44. With some hesitation I would hold that they do. This was not a family home; at the time of the purchase the financial affairs of the Plaintiffs were reasonably healthy and, Ms Malone's evidence is that she was purchasing Scope House in her maiden name because she wanted it for herself. Mr Fagan was also clearly engaged in other business ventures. Ms Malone's evidence was that she was engaged in commercial type activities although not apparently whole-time and she also said that as from 1971 she became virtually a full-time housewife. Mr Johnson gave evidence that she worked at home on secretarial and paperwork aspects of her business ventures. She also said, however, that the monies which she provided to fund the deposit account with the £76,000 came from her children's insurance policies and that her intention was to provide Scope House as security for her children. I have held that the Plaintiffs co-operated with each other and got on well as a married couple and the probability clearly is that Mr Fagan would have known of his wife's intentions and purposes in this regard. Whatever about Mr Fagan's obligation to provide Scope House - as distinct from any other property - for the benefit of his wife, he was clearly under an obligation to provide for his children. On the balance of the evidence and, I have to admit with some hesitation, I consider that the circumstances in and about the purchase of Scope House show that he was expected to provide any monies which he contributed for the benefit of his wife and/or his children.

45. Since I have held that the presumption is an equitable doctrine, I turn now to deal briefly with the submission that it should not apply in the present case if I do not accept the evidence of Ms Malone. (I have already held that an extra £50,000 was not paid "under the table"). In relation to Ms Malone's evidence, my view is that while I have to be circumspect and careful in weighing it, I do not think that she set out at any point deliberately and consciously to mislead the court. She accepted readily that she could not recall the details of the various transactions which happened several years ago. She also accepted that she left the management and daily running of Scope House to her husband. She was clear however, that she had contributed money, although she was not sure how much, to the video business and had invested in the Irish Life policies. She was independently corroborated on a number of points by other witnesses whose evidence I accepted. In these circumstances, whilst I may not accept every detail of the evidence of Ms Malone, and whilst my general approach is to be cautious and treat it with circumspection, and to compare and contrast it with the contemporary documentary evidence, nonetheless, I do not think I should hold that because of this Ms Malone fails to come to court with clean hands and should be deprived of the benefit of an equitable doctrine. Mr Traynor has pointed out a number of inaccuracies and inconsistencies in Ms Malone's evidence and between her oral evidence and her averments on Affidavit. I do not consider, however, that these inconsistencies mean that she has not come to court with clean hands. On the contrary, I have seen her in the witness box and I have noted in particular that on points where she was apparently embarrassed and contradicted in cross-examination she was subsequently corroborated. Accordingly, I consider that I should apply the equitable doctrine of advancement unless it is rebutted.

46. Was it rebutted? There is certainly some evidence to suggest that Mr Fagan did not intend to confer a beneficial interest on Ms Malone in the purchase of Scope House. Rory Burgess gave oral evidence that Mr Fagan told him as much. He said Mr Fagan told him he wanted to buy the property and put it in his wife's name so that the tenants would not know that he owned the building. In the application for personal advance prepared by Dan O'Driscoll, it is noted that

47. On the other hand Ms Malone insisted that she and she alone purchased the house although she accepted that initially her husband had considered doing so (in this she was corroborated by Dan O'Driscoll, albeit in response to a leading question). The entire bank documentation treats her as the borrower and owner, although it is readily accepted that the day to day running and management of the property was left to Mr Fagan and indeed, the statements of the account were addressed to Ms Malone "care of Mr Fagan". Dan O'Driscoll gave evidence that the authorities in the bank who lent the money lent it to Ms Malone and to no-one else and that they could have recourse only to her. He himself said that he had to clear all significant transactions with her. He was in no doubt that the money was lent to Ms Malone and to no-one else. Rory Burgess, on the other hand, insisted that he sold the property to Mr Fagan and explained his Land Registry Certificate to the effect that the beneficial interest was transferred to Ms Malone upon the basis that it was not important to him who the purchaser was. In the submissions to the Revenue Commissioners prepared on behalf of both Plaintiffs by Carl Moynihan, Accountant, the property and income is treated as belonging to Ms Malone. Even though the latter was not a contemporaneous statement by Mr Fagan because it would have been against his interest in the sense that he was acknowledging that Ms Malone had the beneficial interest in Scope House it is evidence which the court can accordingly take into account.

49. The evidence which tends to rebut the presumption of a advancement is indirect. It consists of statements made to Mr O'Driscoll and duly noted by him in the bank's application form, and statements made by Mr Fagan to Rory Burgess. On the other hand Ms Malone has given direct evidence and the implementing documentation is comprehensive and unambiguous. The Defendant has also submitted that I should not apply the presumption of advancement if I hold that Mr Fagan supplied any purchase money for Scope House with the purpose of hiding it from the Revenue. No evidence of any kind was adduced to suport this contention and I consider it would be speculation on my part to draw this inference and accordingly decline to do so. In my view, on the overall balance of this evidence, the presumption of advancement has not been rebutted and accordingly applies.

50. The loan was made by AIB to Ms Malone. It was repaid in part by way of monthly instalments of £2,010 paid from an account in the name of Ms Malone. On the 19th August, 1989 £14,000 was lodged to this account in further reduction of the outstanding loan. Ms Malone cannot recall anything about this money and indicated that she would be only guessing if she tried to. There is simply a dearth of evidence in relation to where it came from. I do not think it is open to me, as suggested by Counsel for the Defendant, to infer that it must have come from Mr Malone. The security for this loan was a charge on Scope House itself together with a lien on the £76,000 lodged on the 16th May, 1986 in to an account in the name of Ms Malone. Her evidence is that this money was the fruit of the life insurance policies which had been cashed in by her, but she accepts that this occurred approximately two years before May of 1986. She was not able to give any more specific details than that. There was a general suggestion that the money must have been provided by Mr Fagan but again, in the absence of more specific evidence I am not prepared to make this inference. Accordingly, subject to the immediately following consideration, all the indications are that the money was loaned to Ms Malone and repaid by or on her behalf and that the security provided was provided by her or on her behalf.

51. It is contended by Counsel for the Defendant, notwithstanding, that in circumstances where the Defendant has undertaken the repayment of the loan (and for the purpose of this argument I am prepared to accept that this is correct) Mr Fagan must be given the benefit of an interest proportionate to the amount of the loan on the basis that Ms Malone held such proportion on a resulting trust in his favour. I am referred to three authorities to support this submission. They are Cowcher -v- Cowcher (1972: WLR: 425); Re Gorman (a bankrupt) (1990: 1: AER: 717); and Huntingford -v- Hobbs (1993: 1: FLR: 736) which I will refer to as Cowcher, Gorman, and Huntingford respectively.

"Suppose a conveyance to A. for £24,000 with A. admittedly providing £8,000 out of his own free available monies. The remaining £16,000 may be provided by B. in a number of ways: (1) out of his own free available moneys (sic); (2) by loan from a third party; (3) by loan from A.; and (4) by a loan secured by a mortgage on the freehold of the property. Cases (1) and (2) are indistinguishable and will give B., if no contrary intention , a two thirds interest under a resulting trust, leaving A. with one third. In cases (3) and (4) A. is involved because he either lends the money or it is raised on property in which he has an interest. In my judgment, in such a case prima facie B. will also have a two thirds interest because he or his obligation to repay a loan has been the source of £16,000 of the purchase money. But suppose that at the time A. says that as between himself and B. he, A., will be responsible for half of the mortgage repayments, a different result ensues. Though as between A. and B. and the vendor A. has provided £8,000 and B. £16,000, as between A. and B. themselves A. has provided £8,000 and made himself liable for the repayment of half the £16,000 mortgage namely a further £8,000, a total of £16,000; the resulting trust will therefore be as to two thirds for A. and one third for B. - the reverse of the former situation".

52. In the foregoing example A. has made himself "responsible" for half the mortgage repayments or, again, "liable" for the repayment of half. I agree with Dr Forde that this must mean that as between A. and B., A., in the example, has made himself legally liable for the repayment of half the mortgage. It is not a question of A. being responsible or liable for the repayment in the sense that he would undertake to make arrangements such as organise funding or tenants or contracts or whatever. I think in the example it is clear that A. is providing half the mortgage out of his own resources and therefore I do not think that this is an authority or support for the proposition that Mr Fagan by arranging and managing the tenancies and so on in Scope House can make a claim for a beneficial interest therein proportionate to the amount of the monies repaid.

"In circumstances of this kind, the court is concerned to ascertain, so far as is possible from the evidence, what was the intention of the parties when the property was purchased, or what intention is to be imputed to them. Prima facie, if the purchase is financed in whole or in part on mortgage, the person who assumed liability for the mortgage payments, as between the joint owners, is to be treated as having contributed the mortgage moneys (sic). And, as Griffiths L.J. observed in Bernard -v- Josephs (1982: 3: AER: 162 at 170, [1982]) CH 391 at 403:

"In the present case, in contrast, while both parties as joint proprietors had to join in the mortgage and assume joint and severable liability to the mortgagee building society, there was a clear agreement or understanding that, as between the two of them, Mr Huntingford would pay all the interest due under the mortgage and all the endowment policy premiums which would in due course, if the policy were duly kept up, discharge the capital debt owed to the lender. As at the date of the purchase, while Mrs Hobbs no less than Mr Huntingford was assuming a liability to the lender, it was not contemplated that, as between the two of them she would have to pay anything towards discharge of this liability".

55. Once again this passage really does no more than apply the established approach of the courts which is to draw the most likely inference as to the common intention of the parties at the date of the transaction from their conduct and contemporaneous utterances. It does not establish, in my view, anything like the proposition that if one party makes arrangements for the repayment of the mortgage, even taking responsibility for the entire thereof out of the hands of the other, such party is entitled to a beneficial interest proportionate to the amounts actually repaid.

57. This conclusion is consistent with the preponderance of the assertions made in the tax returns and indeed, in the documents discovered by the AIB with the exception, of course, of the statement already referred to in the loan application form. It is, of course, not consistent with the verbal testimony of Mr Burgess but is consistent with his Land Registry Certificate. I hold that Ms Malone is entitled, so far as this topic is concerned, to the beneficial interest corresponding to the £100,000 mortgage loan.

58. Ms Malone was vague in the extreme when dealing with this in her evidence. She admitted that she would only be guessing if she attempted to suggest where it came from. On the other hand, the submission of the 21st November, 1988 to the Inspector of Taxes signed by Stephen Fagan and dealing with the tax affairs of both Plaintiffs, indicates that this £10,000 was raised by the disposal of a motor vehicle. There is no indication that the motor vehicle was Ms Malone's, and while she gave evidence that her husband did deal in motor vehicles and did claim to have invested in this business she was vague and gave no particulars. On the balance of probabilities I think that this £10,000 was contributed by Mr Fagan. Because of my conclusions in relation to the presumption of advancement I hold that he intended to convey the beneficial interest in this £10,000 to Ms Malone. If I am incorrect in this, however, he would himself be entitled, on the basis of a resulting trust, to an interest in Scope House proportionate to this £10,000.

59. The evidence that this was provided by Mr Fagan rather than Ms Malone is even stronger, in my view. The tax submission already referred to indicates that this £22,000 was the commission on the sale of videos. I consider this to be a reference to the commission earned by Mr Fagan on the Polygram deal in the UK. It is true, of course, that Ms Malone gave evidence that she invested in this business, but her evidence was not specific and admittedly vague and I am not prepared to hold that she has established with sufficient clarity the degree of her interest, if any, in this business. Accordingly, I hold that this £22,000 (£10,000 of which went towards the purchase price and £12,000 towards V.A.T.) was provided by Mr Fagan. The same considerations apply to this: but for the presumption of advancement which I hold does apply, he would be entitled to a resulting trust proportionate to the £10,000 referable to the purchase money.

61. The evidence clearly establishes that Ms Malone's sale of Scope House to Donato Borza was called off when she learned of the Defendant's registration of his judgment. At the time she owed £55,000 to solicitors and some thirty odd thousand pounds to the bank. The Defendant indicated that he would not object to the sale going through if £100,000 of the proceeds was kept pending final determination of his claim. This offer was apparently initially accepted on behalf of Ms Malone, but subsequently rejected and she abandoned the sale.

62. I do not think that the registration "caused" the abandonment of the sale or any consequential loss. This was a decision of Ms Malone's which she was perfectly entitled to take but the consequences of which she cannot lay at the door of the Defendant. In these circumstances I do not think she is entitled to any damages under any of the headings submitted. I intend nonetheless to deal shortly with each of the headings as follows.

63. The liquidator was under a general duty to the creditors of Greendale to preserve any assets which might become available to satisfy their claims. The evidence before me was that he took into account the evidence of Rory Burgess given in separate proceedings to the then President of the High Court, Costello P. to the effect that he, Rory Burgess had sold Scope House to Mr Fagan. That is, incidentally, an assertion which Rory Burgess has repeated in these proceedings. I cannot see that the Defendant was negligent or in breach of any duty of care owed to Ms Malone in these circumstances. It is further suggested that as the preparation for this case progressed he should have become increasingly aware of the evidence supporting Ms Malone's claim. It has taken twelve days before me with a mass of evidence and sophisticated legal submissions to have the matter clarified. I cannot see how the liquidator could have been expected to withdraw his registration and I cannot see how he could be said to be negligent as alleged.

64. Once it is accepted, as I think Counsel for the Plaintiff does, that an honest belief in an unfounded claim is not sufficient evidence of malice to support an allegation of slander of title, this disposes of the matter because, in my view, the liquidator's belief in his claim was honest. There is no indication otherwise. Furthermore, Dr Forde has said that if recklessness is sufficient to found a claim of slander of title, then the Plaintiffs have made out such a claim in the present case. I hold that there was nothing reckless in what the liquidator did: on the contrary he was under a duty to the creditors of Greendale to preserve any asset likely to satisfy their claims and I do not think the Plaintiffs have made out a claim of slander of title.

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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Malone v. McQuaid [1998] IEHC 86 (28th May, 1998) URL: http://www.bailii.org/ie/cases/IEHC/1998/86.html Cite as: [1998] IEHC 86

High Court of Ireland Decisions

Malone v. McQuaid [1998] IEHC 86 (28th May, 1998)