High Court: Man who bought a house for his parents in 1996 loses application to throw out his sister’s challenge to 2013 conveyance

High Court
High Court

A man who entered into an agreement with his parents in 1996 wherein he purchased a house for them through a tenant scheme, has lost his application to strike out proceedings brought against him by his sister.  The man’s sister is seeking to set aside the conveyance of the house to him in 2013 on grounds of undue influence and/or duress. Refusing the application, Mr Justice Garrett Simons said the case could not be decided on the basis of documentation submitted to the court and that the high threshold for striking out proceedings had not been reached.  


In December 2014, Jean Connors, as the Administrator of her mother’s estate, brought proceedings to set aside the voluntary conveyance of the house owned by her mother to her brother, Daniel Kinsella, on 7 August 2013.

The proceedings were predicated on allegations of undue influence and/or duress on the part of Mr Kinsella and the professional negligence of the Tarrant and Tarrant Solicitors who acted on behalf of both parties to the voluntary conveyance.

The allegation against Tarrant and Tarrant was that the firm acted for both the transferor and transferee in the impugned transaction; and that this gave rise to a conflict of interest. Although not expressly pleaded, the implication was that this alleged conflict of interest vitiated the transfer of the house.

Mr Justice Simons noted that Mr Kinsella averred that Tarrant and Tarrant acted only on his behalf in the impugned transaction, and that his late mother had independent legal advice from another firm of solicitors.

Application to strike out the proceedings

In the High Court, Mr Kinsella made an application to strike out proceedings as frivolous and vexatious and/or as an abuse of process.

On behalf of Mr Kinsella, it was accepted that the threshold to strike out proceedings was a high one, but that this was a “documents case” the resolution of the which would, to a large extent, turn on the legal effect of a written agreement entered into between certain of the family members on 26 March 1996. Reliance was therefore placed on the principle that the court is entitled to exercise its jurisdiction to strike out proceedings where the legal rights and obligations of the parties are governed by documents. It was also argued that no case of undue influence had been properly pleaded.

On behalf of Ms Connors, it was submitted that the written agreement of 26 March 1996 was ambiguous, and the case could only be resolved by way of oral evidence – particularly cross-examination.

The 1996 Agreement

The agreement of 26 March 1996 signed by the late Mr and Mrs Kinsella, Daniel Kinsella, and other members of the family, stated:

“I, Daniel Kinsella, born the 26th day of October 1965, am buying the house and property at 10 Casement Park, Bray, Co. Wicklow, Ireland, on behalf of my parents. The reason being is this is a tenant scheme purchase program and since the house is in my father’s name it doesn’t legally give me the right to purchase the property in my name. This is considered a present to my parents. I am buying the property for myself, but in my parents name, who have lifetime tenancy. This agreement cannot be overwritten by anyone’s will”.

The agreement also included seven terms which were set out in Mr Justice Simon’s judgment.


Mr Justice Simons addressed the case with reference to the jurisdiction to strike out and/or dismiss proceedings pursuant to (i) Order 19 of the Rules of the Superior Courts, and (ii) the court’s inherent jurisdiction

Mr Justice Simons explained that an application under the Rules of the Superior Courts is designed to deal with circumstances where the case as pleaded does not disclose any cause of action. In the present case, due to the wording of the statement of claim, there was some confusion as to whether Ms Connors was solely pursuing a professional negligence case against the firm of solicitors.

Mr Justice Simons was satisfied that, from the totality of the pleadings and the replies to particulars, it was clear that a case of inter alia undue influence was being pursued against Mr Kinsella. As such, Mr Justice Simons said he would allow Ms Connors to issue a motion seeking leave to amend pursuant to Order 28, rule 1 of the Rules of the Superior Courts within four weeks of the date of this judgment.

Considering the court’s inherent jurisdiction, Mr Justice Simons said the case could not be characterised as a documents case. He said there were significant factual disputes between the parties, and that it was simply not possible to resolve the proceedings at this stage in advance of a full hearing and cross-examination of witnesses.

Mr Justice Simons said the dispute was between family members, and documentation was limited. Furthermore, “unlike a commercial dispute, it cannot be assumed that the documentation will be exhaustive of the dealings between the parties”.

Concluding that the high threshold for striking out proceedings had not been reached in this case, Mr Justice Simons refused the application.

  • by Seosamh Gráinséir for Irish Legal News

© Irish Legal News Ltd 2019

Other judgments by Mr Justice Garrett Simons