High Court

Tobin (Suing by his Sister and Next Friend Mary Carpenter) v Cassidy 

3 November 1998 

KEANE J: 

The plaintiff, who was born on the 12 November 1974 was the principal beneficiary under the Will of his uncle, James Tobin, who died on the 1 June 1990. The late Mr Tobin appointed Mr Stephen Thomas Strong, a solicitor, and Mr George Armstrong, an auctioneer, to be his executors and trustees. He devised and bequeathed all his property, real and personal, to the executors and trustees in trust for the plaintiff until he attained the age of 21 years and then to him absolutely. This bequest was subject to certain pecuniary legacies amounting in total to £2,500. 

The plaintiff had left school at the age of 15 without having passed any significant examinations. The uncontradicted evidence of a psychologist was that he suffered from "a mild learning disability", his cognitive skills and intellectual abilities being approximately those of a seven year old. While he is able to recognise numbers, count and perform simple addition and subtraction, his numerical skills are also those of a seven year old. The psychologist summed up his conclusion as being that:- 

"the plaintiff is poorly equipped to deal with his own financial arrangements and all but the most basic employment activities." 

The assets which the plaintiff was left consisted of a farm and dwellinghouse in County Meath comprising in total approximately 40 acres with a milk quota attached to it of 7,500 gallons per annum, a herd of cattle, the value of which for probate purposes was stated to be £4,500 and approximately £17,000 in cash. The value of the lands and dwellinghouse for probate purposes was stated to be £65,000. Any duty payable together with the testamentary and the funeral expenses and the legacies had to be paid out of the cash, leaving only a small credit balance remaining. 

The plaintiff, although then aged only 15, went into possession of the farm and attempted to run it. In this, he was wholly unsuccessful. Unused as he was to dealing with money and suffering in any event from the disabilities to which I have referred, he simply sold off the valuable herd piecemeal to neighbouring farmers. He seems to have made no attempt to bargain with them and the money which he got was squandered, there being unhappily, as one might have expected, all too many people of his own age willing to help him. It is no exaggeration to say that he sold everything on the farm that could be removed. 

After he had been engaged for some time on this improvident way of dealing with his inheritance, the plaintiff met the defendant. The latter is a garage proprietor, is significantly older than the plaintiff and, unlike the plaintiff, suffers from no disabilities. In the year 1992 he came to an agreement with the plaintiff, under which the plaintiff leased him all the lands and the milk quota for a term of three years from 1 January 1992 for what was described as the bulk rent of £4,500. That money was paid by cheque to the trustees: the plaintiff was also given a cash payment of £3,750 making a total payment for the three years of £8,250. This lease also included an "option agreement" as follows:- 

"In consideration of these presents and in consideration of the sum of £1 paid by (the defendant) to [the plaintiff] (the receipt whereof is hereby acknowledged) it is hereby AGREED that the [defendant] shall at any time during the currency of the term of years have the option to purchase the said lands, buildings and milk quota demised by this lease with unencumbered title save as now appears for the price or sum of £65,000 upon service of seven days written notice by the prepaid ordinary post and (sic) the last known residence of the [defendant] (sic) or his heirs executors administrators and assigns and successors in title, such sale to be completed 28 days thereafter in accordance with the standard conditions of the Law Society." 

It is acknowledged that the plaintiff entered into these two transactions without any independent advice and it is manifest that the second lease, containing as it did no rent review clause and entitling the defendant to exercise the option to purchase at any time during the 25 year period without any regard to any increase in the value of the land, was improvident. The extraordinary series of transactions was completed by an undated transfer by the defendant to the plaintiff of lands, presumably the lands the subject of the lease although they are not specified in the so called transfer, and in which the receipt of the sum of £65,000 is acknowledged by the plaintiff. 

The plaintiff, having ultimately been advised by his present solicitors, instituted these proceedings in the Circuit Court claiming an order setting aside the agreement of the 12 November 1992. The defence and counterclaim, in addition to denying that the agreement should be set aside, also claimed that the defendant had paid all the sums due on foot of the agreement and, accordingly, was entitled to the full beneficial estate and interest in the lands. It was also claimed that he had carried out improvements on the lands in respect of which he was entitled to be paid compensation. The case came on for hearing in the Circuit Court before Judge Dominic Lynch, who granted the declaration sought by the plaintiff and dismissed the counterclaim. From that order, an appeal was taken by the defendant. 

At the hearing before me of the appeal, I was informed that proceedings were now in train to have the plaintiff made a ward of court and the present proceedings were now being maintained by his sister and next friend, Mrs Mary Carpenter. I was also informed that it was no longer contested on behalf of the defendant that the transactions should be set aside. 

Accordingly, the only issues which I was required to resolve were:- 

(a) Whether the defendant was entitled to be declared entitled to the beneficial interest in the lands, because, as was claimed on his behalf, he had paid the agreed sum of £65,000 or, at the least, was entitled to be repaid that sum; 

(b) Whether the plaintiff was entitled to any damages in respect of waste allegedly committed by the defendant during the time that he was in occupation of the lands; 

(c) Whether the plaintiff was entitled to be paid the rents which should have resulted from the letting of the lands during the time the defendant was in occupation and; 

(d) Whether the defendant was entitled to any sums in respect of improvements allegedly effected by him to the land. 

As to the first of these issues, I have heard the evidence of the plaintiff and the defendant. The plaintiff, while he accepted that he was paid small sums from time to time by the defendant, said that he was certainly not paid the sum of £65,000 as claimed by the defendant. The defendant said that he had in fact paid the plaintiff these sums by eight separate payments, of sums ranging from £5,000 to £8,000, the payment on each occasion being made in cash. The defendant produced what he claimed were receipts for these sums signed by the plaintiff. The plaintiff acknowledged his signature on these receipts, but insisted that he had never received sums of the order indicated although he had been given a car by him which he subsequently crashed. He also said that, while he signed the various documents to which I have referred, he did not read them or understand their nature. 

I have no hesitation in accepting the plaintiff's version of events. There was little or no evidence put forward on behalf of the defendant as to the source of these relatively large cash sums and I find it quite incredible that, if such payments were made, the defendant would not been in a position to produce bank statements or passbooks showing withdrawals from banks or building societies of the relevant amounts. I am driven to the conclusion that, throughout this sorry sequence of events, the defendant simply took advantage of the plaintiff, who was not merely significantly younger than he was but was also of limited understanding. I have no doubt that he paid small sums to the plaintiff from time to time and gave him a car, but in a court administering equitable principles, there could be no question of the defendant, in the light of his conduct, being entitled to the repayment of these sums. 

As to the second issue, I am satisfied that the defendant did make several alterations to the property while he was in possession of it, although not all were to the plaintiff's disadvantage and some were to his advantage. 

I am satisfied in the first place that the plaintiff is entitled to the sum of £6,994, in respect of the cost of reinstating the lands to their original condition. I am satisfied that some at least of the land had been left fallow and required spraying, ploughing, tilling, and sowing, etc that some gates and fences had been removed, and that hedges, fruit trees, etc had been removed. The total cost of this work was estimated by the plaintiff's quantity surveyor at £6,994 and I will allow that sum. 

I am also satisfied that the plaintiff is entitled to the sum of £2,900 in respect of the cost of restoring the farm buildings to their original condition. The defendant had effectively converted a hay shed into a store by closing up the walls and putting in a concrete floor. He had also removed a cattle crush and demolished a shed used to house dairy cows. I will allow the plaintiff the costs estimated of doing this work at £2,900. 

The plaintiff was also entitled to the letting value of the land for the period when the defendant was in possession. As I have said, the evidence in respect of the first lease was that the sum of £8,250 in all was paid to the plaintiff in respect of a three year period. In respect of the second lease, the plaintiff is entitled to be compensated in respect of the rents which he would have received had he not been led into this improvident transaction. 

Mr Armstrong, the auctioneer who was also one of the trustees, gave evidence that the letting value of the lands, milk quota and dwellinghouse was substantially higher than the rents which the defendant agreed to pay under the two leases. However, Mr Armstrong actually executed the first lease, as did his fellow trustee, on behalf of the plaintiff and sought to explain the significant discrepancy between the sum of £8,250 and the market rents of which he gave evidence by saying that he was simply concerned to carry into effect the agreement already reached between the plaintiff and the defendant. I think, however, that there is no escaping the conclusion that either the market rent was £8,250 for the three year period or Mr Armstrong was seriously neglectful of his duty as a trustee. If the latter is the explanation, then it seems to me illogical and unjust that the defendant should be obliged to pay the market rent for the whole period, when there is no reason to suppose that, had Mr Armstrong been involved in the negotiation of the second lease, he would not have been equally unmindful of his duties as a trustee. That shortcoming cannot be laid at the defendant's door. 

The plaintiff is accordingly entitled to the yearly rent of £2,750 in respect of the lands and milk quota from the time the defendant went into occupation until the time the plaintiff recovered possession. I accept Mr Armstrong's figures as to the letting value of the house which he put at £16,820 in respect of the period from 1991 to earlier this year. The defendant is entitled to credit for the sum of £8,250 against these sums. I have no note as to whether the parties were agreed on the respective dates on which the defendant went into possession and gave up possession, but I presume that there should be no difficulty in reaching agreement on those dates. I was also told that in respect of at least some of the period the rent was paid by the defendant to the plaintiff's solicitors pending the determination of these proceedings: again, any necessary adjustments to the figures can be agreed between the parties. 

As to the plaintiff's claim for damage caused to the dwellinghouse and the farm buildings by the defendant while he was in occupation, the two principal items under that heading are the replacement of the milking parlour at £36,000 and of the heating and plumbing installation at £5,200. However, I am satisfied that the plaintiff during the time that he was in possession, as I have already said, removed everything from the building that was not nailed down and that in many ways when the defendant took over the premises they were already in a somewhat dilapidated condition. The evidence also was that there was in fact no central heating in the premises at the time the plaintiff took them over. While there may have been some items of repair which were necessitated by the defendant's actions, I think that the justice of the case is probably met by not allowing the plaintiff any sum under this general heading, since had he continued in occupation of the premises I have no doubt that they would have deteriorated even further. 

As to the improvements claimed to have been effected by the defendant, I find the position to be as follows. The quantity surveyors were not in dispute about a number of the items viz:- 
	
windows	£1,161.60	
window boards	85.50	
skirting	115.35	
fire surround	420.00	
dry lining	728.75	
reveals	75.00	
tar and chippings	3,140.00	
kerbing	918.00	
fencing	1,225.00	
gate	230.00	
gate piers	130.00	
footpath	575.00	
Total:	£8,804.20	

It is true that this work was not requested by the plaintiff. However, given that the property would undoubtedly have deteriorated significantly had he been left in occupation, I think that it is only fair that the defendant should be allowed at least some credit for the improvements which will permanently benefit the property. I will accordingly allow the defendant the total of these sums, ie £8,804.50 as a set off against the sums due by him to the plaintiff on foot of this judgment. 

There may, of course, have been other works done, such as the laying of drains, which will benefit the property, but I accept that these works cannot now be measured and their value assessed and the defendant must bear the loss resulting from that state of affairs. 

I will, accordingly, dismiss the appeal, affirm the order of the learned Circuit Court judge setting aside the lease of the 12 November 1992 and an undated transfer of the same year and dismiss the defendant's counterclaim, but vary the order by awarding the plaintiff the sum set out in this judgment in respect of waste committed by the defendant and the rents to which the plaintiff is entitled. 

The parties will have liberty to apply to me in respect of any of the items of damage which create any difficulty.