The High Court has allowed Kenneth Price’s appeal over costs arising from a garnishee application, setting aside an order that he pay the other side’s costs. Mr Justice Garrett Simons directed that each party bear its own costs of the Circuit Court proceedings.
The appeal, heard on 10 July 2023, was confined to costs. The underlying garnishee application had sought to attach proceeds from the proposed sale of a dwelling house in Churchtown, County Dublin, to satisfy a judgment debt. The court did not decide the appeal by reconsidering the application itself.
Price had obtained a €21,000 judgment, plus taxed costs, against Patricia O’Callaghan in 2012. After her death, her sister Ann Douglas was substituted as defendant in the High Court appeal in her capacity as personal representative. The house had been held in trust for O’Callaghan under their late mother’s will.
Price sought a conditional garnishee order in December 2019 after correspondence from the estate’s trustee indicated that O’Callaghan was selling the house, and a property listing described it as “sale agreed”. O’Callaghan and the trustee later maintained that she had no proprietary interest and that the trustee alone could sell the property. They said the apparent sale arose from a “miscommunication”; the trustee then decided not to sell.
In January 2020, the Circuit Court vacated the conditional order, refused to make it absolute, directed that a defective judgment mortgage be removed, and ordered Price to pay costs. The costs decision appeared to have been influenced by a view that his grounding affidavit had failed to disclose the dismissal of earlier well-charging proceedings. Those proceedings had been dismissed in 2014 because Price could not establish that O’Callaghan had a proprietary interest in the house.
The High Court found there was no reasonable basis to say that Price had materially failed to disclose that history. It said his affidavit set out a comprehensive chronology, referred expressly to the earlier proceedings and exhibited an affidavit from them. The judge hearing the application would have known about the trust and the parties’ previously stated position, the court said.
Justice Simons said the garnishee application was reasonable in light of the evidence suggesting a proposed sale. He noted that O’Callaghan had acknowledged that purporting to sell the house was wrong in light of her asserted status as a trust beneficiary. The application failed after the trustee and O’Callaghan changed position and abandoned the sale.
For the appeal costs, the judge’s provisional view was that no order should be made because Douglas did not contest the appeal. Either party may file written submissions seeking a different order within 14 days; the judgment does not state a final appeal-costs order.