High Court of Ireland Decisions

1. The factual background to the dispute between the parties in this matter is that in 1979 Robert H. Dunn agreed to sell his farm in Co. Donegal to the Second named Defendant for £70,000. The Second named Defendant was not in a position to pay the entire sum of £70,000 and it was agreed that he would pay the sum of £10,000 at that time and that the balance of the purchase price would be payable in instalments. Mr. Dunn's farm comprised two folios, namely, Folio 238 and Folio 288 of the register of freeholders, Co. Donegal. It was decided that Folio 238 would be transferred to the First named Defendant, the wife of the Second named Defendant, at a price of £25,000 and that the lands registered in Folio 288 would be transferred to the Second named Defendant at the price of £45,000. It was agreed that the balance of the purchase money not paid on the completion of the transaction (£20,000 in the case of the lands registered on Folio 238 and £40,000 in the case of the lands registered on Folio 288) would be repaid and secured in the manner set out in the Deeds of Transfer.

2. The Deed of Transfer in relation to each Folio was dated 9th January, 1980. They were both in the same form. It is convenient to consider their provisions by reference to the Deed of Transfer in relation to Folio 238. In that Deed of Transfer, which was expressed be made in consideration of the sum of £5,000, Mr. Dunn transferred the lands registered on Folio 238 to the First named Defendant. The transfer was expressed to be subject to and charged with payment to Mr. Dunn of the balance of the purchase money in the terms following:-

3. There followed a proviso to the effect that payment of an instalment of principal might be postponed for up to one year. In the Deed of Transfer the First named Defendant covenanted for payment of the principal sum of £20,000 "by the instalment (and with interest) aforementioned".

4. After the death of Mr. Dunn the terms of the repayment of the balance of the purchase money outstanding were varied by an Agreement dated the 31st day of July, 1985 (the Agreement) made between the Second named Defendant of the first part, the First named Defendant of the second part and Eliza G. Dunn (Mrs. Dunn) of the third part. In that Agreement, which was executed by all of the parties, it was recited that at the date thereof no instalment of principal payable by the First named Defendant or the Second named Defendant had been paid and that there was then outstanding and in arrears the sum of £800 representing the balance of interest due as at 1st January, 1985 in respect of the charge on the lands registered on Folio 238 and the sum of £1,600 representing the balance of interest due as at 1st January, 1985 in respect of the charge registered on Folio 288. It was further recited that the First named Defendant and the Second named Defendant had approached Mrs. Dunn to secure a temporary reduction in the interest rate payable by them and she agreed to a reduction on a temporary basis to the rate of 5% per annum. In the Agreement, Mrs. Dunn agreed by way of concession to accept interest at the reduced rate of 5% per annum from 1st January, 1986 during her life or until she should decide to terminate the Agreement. The Defendants agreed to pay the reduced rate of interest on the balance principal outstanding punctually on 1st January in each year during the continuance of the Agreement. It was further agreed that "payment of instalments of principal pursuant to the charges shall be postponed" during the continuance of the Agreement.

5. Mrs. Dunn did not terminate the Agreement during her lifetime. She died on 3rd May, 1994 and the First and Second named Plaintiffs are her personal representatives under a Grant of Probate which issued in this jurisdiction on 13th December, 1996.

6. The charges embodied in the Deeds of Transfers of the lands registered on Folios 238 and 288 were registered as burdens on the respective Folios. The registered owners of the said charges as to one and divided fourth share thereof each are (i) Mrs. Dunn who is now represented by her personal representatives, the First and Second named Plaintiffs, (ii) the Third named Plaintiff, (iii) the First named Plaintiff in her own right, and (iv) the Fourth named Plaintiff.

7. In these proceedings, which were initiated by a Special Summons which issued on 21st October, 1997, the Plaintiffs seek to have the outstanding principal and interest due on the said charges created in the said Deeds of Transfer declared well charged on the lands comprised in Folios 238 and 288 respectively and they seek the usual ancillary relief in the event of non payment of the respective sums, namely, a sale through the court.

8. There is a dispute between the parties as to the amounts due for principal and interest on foot of the charges.

9. I have already ruled on the rates of interest payable by the Defendants on foot of the principal sums outstanding by virtue of the provisions of the Deeds of Transfers dated 9th January, 1980, as varied by the Agreement. I have ruled that the relevant rate of interest is 8% per annum from the inception of the charge to date except for the period from 1st January, 1986 up to the death of Mrs. Dunn on 3rd May, 1994, during which period the relevant rate was the rate of 5% per annum provided for under the Agreement.

10. Notwithstanding that ruling, the parties remain in dispute as to the amounts now due to the Plaintiffs on foot of the charges registered on Folios 238 and 288.

11. In relation to the charges embodied in the Deeds of Transfer dated 9th January, 1980, the Defendants covenanted to pay the principal sums outstanding by equal annual instalments, which should have discharged all of the principal in 12 years from 1st January, 1981, that is to say, by 31st December, 1992. In addition, the Defendants agreed to pay interest at the rate of 8% per annum on the balance of the principal from time to time outstanding. One of the effects of the recitals in the Agreement was to establish the state of the indebtedness of the Defendants as 31st July, 1985. They were indebted in respect of the entire principal, (£20,000 in respect of Folio 238 and £40,000 in respect of Folio 288), and they were also indebted in respect of £2,400 in respect arrears of interest (£800 in respect of Folio 238 and £1,600 in respect of Folio 288). Moreover, the Agreement:-

12. The Defendants executed the Agreement and their execution was attested by a solicitor. In my view, they are estopped from denying the state of their indebtedness as recited in that Agreement and, of course, they are bound by its provisions.

13. On foot of my ruling as to the effect of the Agreement of 31st July, 1985, a supplemental affidavit has been filed on behalf of the Plaintiffs sworn on 8th February, 1999 by their solicitor, Andrew Walker, in which Mr. Walker, by reference to a schedule exhibited in the affidavit, has calculated the sums now due by the Defendants in respect of principal and interest up to 18th January, 1999 at £26,842.05 in respect of the sums due by the First named Defendant in respect of the charge registered on Folio 238 for principal and interest and the sum of £56,542.95 in respect of the sums due by the Second named Defendant in respect of the charge registered on Folio 288 for principal and interest. The schedule gives credit for the various sums which the Defendants assert they paid to Mrs. Dunn during her lifetime.

14. Having considered all of the evidence carefully and having considered the submissions made by Mr. Gleeson, on behalf of the Plaintiffs, and Ms. Long, on behalf of the Defendants, I have come to the conclusion that the calculations contained in the schedules annexed to Mr. Walker's affidavit sworn on 8th February, 1999 properly reflect the amounts due by the Defendants to the Plaintiffs on foot of the charges embodied in the Deeds of Transfer, as varied by the Agreement. In particular, I consider that the Defendants are not entitled to look behind the recitals in the Agreement as to the state of their respective debts to Mrs. Dunn as 31st July, 1985. I am also of the view that, in calculating the sums due, Mr. Walker has properly appropriated the payments actually made during Mrs. Dunn's lifetime in the first instance to interest due and thereafter to principal, because this clearly reflects the intention of the parties having regard to the moratorium on repayments of principal during that period.

15. Accordingly, there will be a declaration that the sum of £26,842.05 for principal and interest up to 18th January, 1999 and further interest from that date at the rate of 8% per annum on the principal sum of £18,422.55 until the date of payment stand well charged on the interest of the First named Defendant in the land registered on Folio 238. There will also be a declaration that the sum of £56,542.95 for principal and interest up to 18th January, 1999 together with further interest from that date at the rate of 8% per annum on the principal sum of £36,847.55 until the date of payment stand well charged of the interest of the Second named Defendant in the lands registered on Folio 288.