The High Court dismissed a husband’s application for discovery of bank, farm and property-transfer documents in proceedings over the proposed sale of the family home. The court said the requested material was unnecessary and vexatious, and ruled that the separate application to dispense with his consent to the sale would proceed without a resulting-trust claim in his favour being considered on the basis of that discovery.
The judgment, delivered by Mr Justice Abbott on 5 December 2014, concerns a motion for discovery, not a final decision on whether the family home may be sold. The applicant, identified as G.R., is the registered owner of the property and seeks an order dispensing with the respondent J.J.D.’s consent to its sale under the Family Home Protection Act 1976. She also seeks a declaration that she is its beneficial owner.
The couple married in 1997 and have two children. J.J.D. transferred the property to G.R. in June 2003, and she became its registered owner in June 2005. He later said the transfer was intended to protect the family home if his business collapsed and that he continued to farm the land and meet related expenses. His submissions maintained that the transfer was not intended to give her permanent ownership.
G.R. borrowed from the Bank of Ireland. The bank obtained judgment against her in February 2011 for €1,698,001.51, plus costs and VAT. The court was told that interest was accruing at more than €2,500 a week. G.R. said a sale was needed to reduce the debt.
In opposing the discovery motion, G.R.’s counsel argued that the respondent could not rely on an alleged resulting trust arising from a transfer he had made to protect assets from potential claims. J.J.D.’s submissions disputed that account and argued that the transfer was intended to protect the family home, not permanently transfer ownership. He also argued that the court should consider the parties’ finances and his efforts to deal with the bank debt.
Justice Abbott concluded that an inquiry into beneficial ownership was not necessary or relevant in the circumstances described in the affidavits. He said the transfer indicated an intention to make a gift if J.J.D. was treated as acting honestly; if the transfer was instead made to guard against potential personal-injury claims, the principles in Parkes v. Parkes meant he should not receive relief by way of a resulting-trust declaration. The judge said it was therefore unnecessary to decide whether the presumption of advancement applied.
The court dismissed the discovery application. It did not decide the underlying application to dispense with consent to the sale. The judgment states that this application would now proceed without consideration of a resulting trust in J.J.D.’s favour and without the requested discovery.