The Court of Appeal has set aside a High Court order that would have charged a debt against a Wexford property, after finding that evidence about who funded the purchase had not been properly considered.
The appeal arose from a dispute between brothers Robert Alan Roberts and David Ian Roberts over the proceeds of their late father Thomas Roberts’s house in Leigh, Lancashire. Robert says David sold the house for £70,000 and kept the net proceeds, which should have been divided equally. An English court made orders in Robert’s favour in 2010, and he later registered a judgment mortgage over David’s interest in property in Wexford.
Robert then sought a well charging order in Ireland. The High Court granted it in December 2023, finding that David had an interest in the Wexford property because funds linked to the sale of the family home had contributed to its purchase. David’s wife, Janice, is the registered owner and was joined to the proceedings.
On appeal, the court said the High Court had not expressly considered Janice’s evidence that she bought the property using her loan capital in a Goodmans account, without a financial contribution from David. The appeal judgment said documents, including a loan ledger reconciliation and a solicitor’s letter recording the purchase price, supported her account to some extent.
The court held that Janice’s affidavit evidence could not be rejected without cross-examination. It also said relevant supporting documents did not appear to have been taken into account. The appeal was allowed and the well charging order, along with its associated costs order, was set aside.
The court did not decide whether the European Enforcement Order Certificate relied on by Robert could be recognised in Ireland. It said that question did not need to be resolved given its conclusion about the High Court’s finding on David’s interest in the property. The court also declined to quash the 2016 judgment mortgage because no formal, properly constituted application for that relief had been brought.
The proceedings were remitted to the High Court for a plenary hearing. The Court of Appeal listed the case for mention on 30 July 2024 to address outstanding matters, including costs, and urged the parties to consider whether the long-running dispute could be settled.