The High Court has remitted a case brought by Everyday Finance DAC over an alleged transfer of charged lands to Cork Circuit Court, where the proceedings are to be heard. The court did not decide whether the transfer was intended to defraud a creditor.
The case was brought under section 74 of the Land and Conveyancing Law Reform Act 2009. As pleaded, the allegation is that Mary Burns transferred lands to her son, Gerald Burns, while they were subject to a charge registered in favour of the plaintiff’s predecessor, with a view to preventing enforcement against her interest. Gerald Burns filed a full defence. The judge expressly said the allegation remained only an allegation and did not address its merits.
Gerald Burns applied to have the case remitted from the High Court. The hearing before Mr Justice Garrett Simons took place on 8 February 2021. In a judgment delivered on 22 February, the judge found that the High Court and Circuit Court had concurrent jurisdiction, and that the agreed market value of the lands did not exceed the €3 million threshold relevant to Circuit Court jurisdiction.
The court rejected the argument that the Circuit Court had sole jurisdiction because the lands might be a principal residence. There was no evidence they were a principal residence; the defendant’s solicitor had described them as farmland and outbuildings. The judge also noted that the underlying loan appeared to be commercial. He explained that the statutory rules concerning housing loans and mortgage enforcement did not determine jurisdiction over this section 74 claim.
In deciding whether to remit the case, the judge considered whether it was reasonable for it to have been commenced in the High Court. He found no novel legal issue or complex facts requiring a High Court hearing. The lands and principal witnesses appeared to be within Cork Circuit Court’s jurisdiction, making a local hearing more practical, particularly during pandemic-related travel restrictions. The plaintiff’s agreement in principle to Circuit Court-scale costs did not outweigh those practical considerations. A possible second set of proceedings was also not a reason to retain the case, as none had been instituted.
The order remitted the proceedings to Cork Circuit Court. Costs were not finally determined: the judge said the successful second defendant would ordinarily be entitled to costs, and set a timetable for any further submissions by the plaintiff and a reply.