Court grants sale order and purchase option to son, transferring mother's interest to him for market price.

Record No: 01288/2021 5443/2020 Neutral Citation: [2025] IECC 10

AN CHÚIRT TEAGHLAIGH CHUARDA

THE CIRCUIT FAMILY COURT

DUBLIN CIRCUIT COURT COUNTY OF THE CITY OF DUBLIN

IN THE MATTER OF THE FAMILY LAW (DIVORCE) ACT, 1996

IN THE MATTER OF THE FAMILY LAW ACT 2019

IN THE MATTER OF LAND AND CONVEYANCING LAW REFORM ACT 2009 (AS

AMENDED)

Between

R.Q APPLICANT/NOTICE PARTY AND

B.Q

RESPONDENT/PLAINITFF AND

M.L

DEFENDANT Judgment of Her Honour Judge Jennifer O’Brien delivered this 14th Day of November 2025:

1. Background: This matter comes before the court by way of notice of motion issued on 11 July 2023. An order was sought re-entering equity proceedings entitled ‘In the matter of the Land and Conveyancing Law Reform Act 2009 (as amended) between B.Q v M.L and R.Q (notice party)’, bearing record number 2020/ 5443 and re-entry of ‘In the matter of the Family Law (Divorce) Act 1996 between R.Q v B.Q’ bearing record number 01288/ 2021 which said matters were linked by the County Registrar on the 25th of January 2022. There was also sought at that time, an order reconstituting the within proceedings in consequence of the demise of R.Q, aforementioned. Further, an order was sought pursuant to Section 6 Rule 10 of the Circuit Court rules joining S.Q. as a plaintiff and/or notice party in the within proceedings. An order was also sought pursuant to section 6 joining L.Q. (suing by her aunt and next friend C.Q.) as a plaintiff and/or notice party in the within proceedings. In essence, further orders were sought pursuant to section 31 of the Land and Conveyancing Law Reform Act 2009 (as amended) in view of the altered circumstances herein and in particular an order permitting the respondent plaintiff and/or the proposed co-plaintiff/notice parties to purchase the share of the defendant’s property situate at an address in Dublin, upon such terms and conditions as the court deems just and equitable. Further and other orders are sought including as submitted by counsel, orders pursuant to section 22 of the Family Law (Divorce) Act 1996.

2. In his grounding affidavit Mr. Q. avers that the equity proceedings were joined with the family law proceedings by order of the County Registrar dated 25 January 2022.

On reading a copy of the said order dated 25 January 2022, what it in fact states is as follows:

“BY CONSENT THE COURT DOTH MAKE ORDER linking the equity proceedings therein record number 2020/05443 of B.Q v M.L and F.L with family law proceedings record number 2021/ 01288 R.Q v B.Q. By consent the court doth order that these equity proceedings be transferred to the Family Circuit Court to be linked with the said family law proceedings.”

“BY CONSENT THE COURT DOTH ORDER that the equity proceedings are to be heard and determined before the hearing of the family law proceedings.”

“BY CONSENT THE COURT DOTH RESERVE COSTS, such costs to include a certificate for counsel.”

3. As such, given the dispute that has now arisen in both sets of proceedings following the untimely passing of R.Q, now deceased, this court is of the opinion that in such circumstances the equity proceedings must be determined in the first instance prior to any consideration as to whether there needs to be a review of the family law orders.

4. It is common case that on the 10th of November 2022 both sets of proceedings were compromised, and terms of consent were entered into by the respective parties.

Furthermore, the court made the required orders on consent and also granted Mr. Q. a decree of divorce on the 11th of November 2022. The court was furnished with copies of the terms of settlement reached in each set of proceedings.

5. Unfortunately, Ms. R.Q died in tragic circumstances on the 15th of December 2022. It is in these circumstances that the applicant seeks reconstitution of the within proceedings. He avers that it is also relevant that the children of the parties would be joined to the proceedings given their financial interest arising as a consequence of their mother's estate.

6. The children of the marriage have resided with their father at the family home since 2008 until the current date.

7. As set out in the terms of settlement in the equity proceedings, the family home was to be sold with Ms. Q. receiving 2/3 of the proceeds of sale and Ms. M.L (her mother)

receiving a 1/3 share. In the context of the family law proceedings, Mr. Q. was to receive a 1/3 lump sum upon the sale of the family home with Ms. Q. receiving a 1/3 share also. However, Ms. Q.’s share/ monies were to be held on trust for her lifetime and thereafter the said 1/3 share/ lump sum was for the benefit of both dependent children (with conditions attached).

8. Crucially it is averred that at paragraph 9 (j) of the terms it is set out clearly that “In the event of a change of circumstances of the applicant’s health and well-being which renders the purchase of property by the trustees for the benefit of the applicant unworkable, the trustees should take no steps in relation to the trust fund in the absence of advance agreement with the respondent (Mr. Q.), or in default of such agreement, liberty to apply between the parties.”

9. It is averred that as a consequence of the unfortunate death of Ms. Q. the said terms cannot be implemented, save for paragraph 9(d) in respect of the children receiving their now 1/3 share between them. However, crucially it is claimed they do not wish their home to be sold and are anxious that some form of arrangement be reached with Ms. M.L and Mr Q. and with S., the eldest child of the marriage who is now an adult.

Absent such an arrangement being reached by agreement, it is deposed that it is just and equitable that provision will be made to allow the children to remain in their home in the context of the huge trauma which they have suffered. It is submitted that it is not envisaged that there would be any financial detriment to the defendant and what is proposed is that she would be bought out at the current market rate.

10. The respondent was approached through correspondence with a view to acquiring her interest in the property, however she confirmed that she wishes to pursue a sale of the property in accordance with the court order. It is submitted on behalf of Mr. Q. that a sum of €345,000 would be paid to Mrs. L. in respect of her interest in the property and that this is an equivalent sum that she would receive following a sale on the open market. Mr. Q. seeks a period of six months within which to buy out Mrs. L.’s interest. Each of the children are ad idem with their father's proposal to resolve the matter by postponing their interests behind the bank charge to facilitate the buyout.

The children have confirmed that it is their wish that the property would not be sold and that they have experienced a considerable amount of trauma on the loss of their mother, and they do not wish to lose their home.

11. On behalf of Mrs. L. it was submitted that while the traumatic loss impacted all, it does not alter the position that an order for sale was made on consent in the equity proceedings. It is submitted that this cannot now be altered, and Mrs. L. is seeking to enforce the order for sale. Counsel submits that the court’s role is functus officio and this case cannot run as an appeal on a re-entry of the proceedings. It is submitted that the County Registrar’s order which links the proceedings rather than joins them does not give the court jurisdiction to vary the orders made nor is variation pursuant to section 22 of the Family Law (Divorce) Act 1996 relevant in the circumstances. In any event a section 13 lump sum order can only be varied where the payment is made by instalments. It is submitted that the family court orders can still be performed. It is submitted that the law is clear and that absent a mistake or fraud, the court is bound by the law surrounding impeaching a compromise. Reference is made to the relevant section of Delany and McGrath on Civil Procedure (5th edition, 2023) at chapter 20 and the settlement of proceedings and impeaching a compromise, in particular to paragraph 20-45 which states:

“It has been observed that there is a “very considerable public interest in upholding the finality of settlements and courts have been traditionally wary of permitting any litigant to undo any such settlement”. Thus, a party to a settlement agreement will not be permitted to disavow a settlement merely because the party considers that it ought not to have been advised to enter into it, or that it does not represent a fair bargain, that further damage has occurred since the settlement was entered into, or that new evidence has come to light to support the case made by that party. However, as with any contract, a settlement agreement may be impeached or set aside for a number of reasons, namely, breach, illegality, fraud, incapacity, mistake, misrepresentation, frustration, duress, and undue influence. The remedy of rectification may also be available in certain circumstances. It is not proposed to examine these various grounds for impeaching a compromise with the exception of the question of whether a settlement agreement can be impeached on the basis of an alleged want of authority on the part of the legal advisers to enter into the settlement agreement.”

12. The question of the want of authority on the part of legal advisors doesn't arise in this instance. The case Knockacummer Wind Farm Limited v Cremins & Anor [2018] IECA 252 is of interest in the sense that the court sided with the wind farm company in that instance, finding that the option was not meant to be exercised immediately, as the Cremins claimed. The court determined that the option agreement should be rectified to reflect the parties’ true intention, which was to grant the option at a future date, specifically after 2040. The court's decision to rectify the agreement by inserting the words ‘in 2042’, demonstrates that the court sought to align the agreement with the parties’ original intent. It is submitted on behalf of Mrs. L. that the 2009 Act does not allow for the variation of the court’s orders as sought on behalf of Mr. Q. and others. It was submitted that the fact that the sale has been delayed does not mean that it cannot go ahead in accordance with the court order. It was never envisaged by Mrs. L. that two years later the property would still not be sold. It was further submitted that the court cannot vary the order where there is no provision to do so. Counsel on behalf of Mr. Q. submitted that the equity orders are to be read in conjunction with the divorce orders and that the court has power to vary the orders under section 22 of the Family Law (Divorce) Act 1996. In addition, it is submitted that a further application can be made for a further order under section 31 of the 2009 Act, providing for a variation of the earlier order and there is liberty to apply in any event. Counsel on behalf of Mrs. L. submitted that the liberty is to apply but not to relitigate the matter.

13. Counsel on behalf of the representative of Ms. Q.’s estate said that what was sought was a variation of the mode and mechanism by which Mrs. L.'s interest is realised rather than wholesale variation of the order. The court was presented with various decisions including P.C.R v G.R [2013] IEHC 635, a decision of Mr. Justice Michael White delivered on 15 March 2013 which relates to a variation of a family court order.

Reference is also made to the decision in F v F (divorce) [2008] IEHC 471, [2011] 2 IR 100 where Abbott J stated at page 108, paragraph 8:

8. “If circumstances prevail during the course of the execution of the order whereby the circumstances of the case have fundamentally changed through a dramatic and unforeseen drop in property values, short of the impossibility of a sale of some crucial asset available for the provision in the order then, on the test of Thwaite v.

Thwaite [1981] 3 WLR 96 there may be circumstances where the court might not enforce that part of the order relating to the sale of such property unless alternative arrangements may be made for provision to ensure the balance and symmetry of the order previously made. However, the test in Thwaite v. Thwaite [1981] 2 FLR 280 [1982] 1 Fam that it would be “inequitable” to enforce the order in circumstances prevailing at the time of the application may be so general and neutral as to be misunderstood, and I would prefer the application of the test posited by me in my judgment in A.K. v. J.K. (variation of ancillary orders) [2008] IEHC 341, [2009] 1 IR 814 in the following passage at pages 822 to 823:

“Hence I conclude that the test as to whether a change, or changes, in circumstances ought to ground a strategic application going outside the limited circumstances envisaged by s. 18 of the Family Law (Judicial Separation) Act 1989, should be that (“other things”) being equal if they are of such a fundamental nature that it would be unfair and unjust to ignore such change or changes. The “other things” to be considered before this necessary condition for a further strategic order to be made after a separation order may be made sufficient, must, I conclude, be guided by the statutory framework set out in the provisions of s. 16(1) and (2), with the final overriding test of fairness and justice contained in subs. 5.’

14. And at page 110, paragraph 8:

8. “As the court has no power to appeal itself or reverse itself, the court should, in the case of an executory order, be careful to ensure that, insofar as the circumstances of the case allowed, the original intent, balance and symmetry of the order are maintained, while at the same time adopting whatever changes and adjustments in provision are necessary to ensure fairness and justice”.

15. Counsel for Mrs. L. reiterated that her instructions are to seek a sale because that is what was agreed when the equity proceedings were compromised, and it is again submitted that the court does not have jurisdiction to vary that order.

16. The parties have been directed by the court to file legal submissions, copies of which are included with this judgment.

LEGAL SUBMISSIONS ON BEHALF OF B.Q

The above proceedings involve three sets of proceedings, however, the Judicial Separation proceedings bearing Record No: 1401/2019 between B.Q v R.Q were struck out on consent by the Court on the 11th November, 2022. For clarity the proceedings are:-

1. In the Matter of the Judicial Separation and Family Law Reform Act, 1989 and in the Matter of the Family Law Act, 1995 between:

• B.Q v R.Q

• Bearing Record No: 1401/19

• B. represented by Sandra McAleer & Co. Solicitors

• R. represented by Dillon Solicitors

2. In the Matter of the Land and Conveyancing Act, 2009 as amended between:

• B.Q v M.L and F.L

• R.Q joined as Notice Party on 10th November, 2022

• bearing Record No: 5443/2020

• B. represented by Sandra McAleer & Co. Solicitors

• M. represented by Dillon Solicitors (R.’s Mother)

• R. represented by Dillon Solicitors____(M.’s daughter)

• (R. was joined as a Notice Party on consent on the 10th November, 2022

3. In the Matter of the Family Law Divorce Act, 1996 as amended and in the Matter of the Family Law Act, 1995 as amended between:-

• R.Q v B.Q

• Bearing Record No: 1288/2021

• R. represented by Dillon Solicitors

• B. represented by Sandra McAleer Solicitors

4. S.Q. and L.Q. (suing through her Next Friend) joined as Notice Parties to the within set(s) of proceedings on the 16th January, 2025 as a consequence of their Mother’s (R.’s) death on the 15th December, 2022 (Court Order).

• Represented by David Stafford Solicitors

• Children of both B. and R.

• S. dob, 11th April, 2004:

• L. dob, 12th November, 2008.

• All Parties are related with B. and R. husband and wife and M.L the Mother of R.Q and Grandmother of S. and L.

Proceedings Linked

5. On the 25th January, 2022 the County Registrar made an Order on consent linking the Equity Proceedings bearing Record No: 2020/05443 between:/ B.Q v M.L and F.L with the Family Law Proceedings bearing Record No: 2021/01288 R.Q v B.Q

• The Court on consent transferred to the Dublin Family Circuit Court the said Equity proceedings.

• On consent the Court ordered the Equity proceedings to be heard and determined before the Family Law Proceedings (See Court Order dated 25th January 2022)

• (This was on the basis the subject matter of both proceedings (Equity and Family) concerned the family home situate at an address in Dublin.

It is proposed to use the Parties names in the within submissions as opposed to Applicant/Respondent/Plaintiff/Defendant /Notice Party to avoid confusion. When the rd matter was before Judge O’Brien on the 23 July, 2025 this course was permitted.

Background

6. The original 3 sets of proceedings were linked on the 25th January, 2022. Thereafter on the 10th November, 2022 all Parties reached agreement in respect to their Equity Proceedings which travelled with the Parties (B. and R.’s) divorce proceedings in which both B. and R. also reached Agreement (10th November, 2022). Both matters were ruled the following day by the Court on the 11th November, 2022 with the Court granting B. and R. a Divorce. The Court also attached both Terms of Settlement to the said Divorce Order. (Annexed hereto at ‘A’ – Equity Terms of Consent, Divorce Terms of Consent + Divorce Order).

7. The Court also made ancillary orders as set out in both Consent Terms filed and the Court received the balance of the said Consent Term(s) making them a rule of Court.

The Court granted Liberty to apply with no order as to costs (See Order – 11th November, 2022).

8. The Equity Terms of Consent were signed by B.Q, R.Q and M.L on the 10th November, 2022.

9. The Divorce Terms of Consent were signed by B.Q, R.Q and also M.L on the 10th November, 2022. M.L signed the Divorce Terms of consent due to the subject matter being (B. and R.’s family home) with the legal interest held by M.L. Additionally, one agreed term related to M. agreeing to discharge 50% of the CAT pursuant to the sale of the property (Para 9 – Divorce term). Furthermore, a bare Trust was to be set up in respect to R. and R.’s one third share of the proceeds of the sale of the family home and M.L as the Mother of R.Q agreed to be one of the Trustees in respect to R.

together with P. C. – para 9(a).

The Subject matter of both sets of proceedings namely (“The Property “) – an address in Dublin– agreed market value by all Parties = €950,000.00 – unencumbered.

10. The property the subject matter of the Equity and the Divorce proceedings is situate at an address in Dublin. The property is the family home of both B. and R. as both B.

and R. resided therein as and from 2007 with R. departing the property in 2018. B.

and the two children namely S. and L. continue to reside therein.

11. B.Q as Plaintiff in the Equity proceedings instituted proceedings against M. and F.L, Defendants, seeking various reliefs/orders pursuant to the Land and Conveyancing Act, 2009 in respect to the property situate at an address in Dublin. Proceedings were instituted by B. on the 14th October, 2020.

12. It was agreed on the 10th November, 2022 when the Parties were negotiating a settlement in respect to the property that R.Q would be joined as a Notice Party on consent to the Equity proceedings. Consequently, the Equity Terms of Settlement dated 10th November, 2022 state at paragraph 1:-

“An Order joining R.Q as a Notice Party to the within proceedings”

13. B., R. and M. signed the Equity Terms of Settlement on 10th November, 2022.

14. There is no full and final settlement set out in the Equity Terms of Settlement.

15. There is a full and final settlement set out in the Terms of Settlement in respect to the Divorce proceedings.

Intention of the Parties

16. It was the intention of the Parties that the most tax efficient method would be used by them to deal with the “property” and tax advice was obtained in this regard prior to both the Agreement in the Equity terms and the Agreement in respect to the Divorce terms being entered into by the Parties. As a consequence of the foregoing, as previously indicated, R. was joined to the Equity proceedings on the 10th November, 2022 whereupon subsequent to the sale of the family home/property (Equity) R.

would retain 2 thirds of the proceeds and M.L would retain one third of the proceeds.

In tandem with the foregoing, travelling into the Divorce Agreement R. would then (in the Divorce proceedings) discharge one third on her two thirds of the proceeds to B.

17. The divorce term at paragraph 7 states:-

“The family home of the parties is being sold in the context of the terms agreed in the Equity proceedings……One third of the two third receivable by the parties hereto of the net proceeds of sale (net of legal and auctioneering costs of sale and Capital Gains tax payable which is payable to the Applicant (R.) shall be paid to B. by way of a lump sum from R.…..R. will utilise her CAT tax free allowance to the extent that is necessary to ensure the Respondent (B.) receives the said sum without deduction of tax”

18. Consequently, R. would then provide one third of the net proceeds to B. whilst her Trustees would retain one third for the benefit of R. (see terms of settlement in Divorce). This was the most tax efficient manner for B. to receive his one third share in the property which meant R. would utilise her inheritance/gift threshold in respect to her gift/inheritance tax from M. (her Mother) to allow B. the benefit in respect to the proceeds of the (family home).

19. At paragraph 2 of the Equity Terms, it was agreed M.L would discharge legal, auctioneering and Capital Gains Tax payable upon the sale of the property. It was further agreed the proceeds of sale payable to R. was subject to the Orders in the Divorce proceedings which was the most tax efficient arrangement subsequent to receiving tax advice.

“The proceeds of sale payable to the Notice Party (R.) to be subject to Orders in Divorce proceedings”

20. Further tax terms were agreed in the Divorce proceedings in respect to the sale of the property which included R. discharging 50% of the Capital Acquisition Tax payable on the sale proceeds and M.L also discharging 50% of the Capital Acquisition tax – para 9:-

“….the remaining 50% of the Capital Acquisitions tax payable being paid by M. L.”

The relevant terms agreed in the Equity proceedings (The Equity Terms of Settlement do not contain a Full and Final Settlement Clause).

21. Para 2 of the Equity Terms states:-

“An Order for sale of the property on the basis the Notice Party (R.) will receive a sum equivalent to two thirds of the net proceeds of sale (being gross price achieved less legal and auctioneers fees and Capital Gains Tax payable by the Defendants (M.). It is confirmed by the Defendants that the property is unencumbered. The proceeds of sale payable to the Notice Party (R.) to be subject to Orders in Divorce proceedings Record No: 01288/2021.

22. Paragraph 3:-

“The remaining one third of the net proceeds is for the benefit of (M.).

23. Para 4:-

“The Parties hereto agree that the sale of the property shall be dealt with in the most tax efficient manner as so advised”

24. Para 5:-

“……………………………..All sums received in respect of the said sale……to be disbursed by them (Solicitors) in accordance with the provisions of these terms and the terms of settlement in the divorce proceedings aforementioned”.

25. Para 7:-

“The property to be put on the market for sale forthwith (precise timing to be subject to the advices of the auctioneer) subject to and with the parties to be bound by the reasonable advices of the auctioneer) in relation to such sale.

Change of circumstances since the making of the Order(s) on consent.

26. Some five weeks subsequent to the Parties signing both terms of settlement being the Equity and Divorce Agreements and prior to any action being taken to place the property on the market for sale, R. died in a house fire on the 15th December, 2022.

In addition to steps not taken in that five-week period to place the property on the market for sale, R. died without making a Will. Therefore, both S. and L. are her beneficiaries in respect to R.’s one third share of the potential sale proceeds.

However, due to the change in circumstances subsequent to their Mother’s death, S.

and L. wish to remain in their family home and do not wish it to be sold.

Application by B. to purchase M.’s one third share of the property.

27. Due to the foregoing, B. wishes to purchase M.’s one third share of the value of the property to ensure both S. and L. (suing through her next friend) continue to reside in their family home which is their wish following the death of their Mother.

28. It is further submitted that an order for the sale of property is procedural in nature and does not alter the proprietary nature of the Order/asset as M. will receive the same and/or more monies due to the saving on auctioneering and legal costs. B. is not seeking to go outside of the intention of the Consent Order as agreed by the parties.

Issue

29. The question for the Court to decide is, can B. purchase M.’s one third share (gross €950,000.00 less auctioneering, legal and Capital Gains Tax.) In other words, can M.

sell her one third share to B. rather than enforcing the Order and placing the property on the market for sale in order that M. obtains her one third share in monies worth.

(All parties are agreed the market value is €950,000.00.)

30. It is submitted B. is not seeking to alter proprietary rights in respect to the Agreement, nor is he seeking to set the Agreement aside. Should the Court permit B. to purchase M.’s one third share, B. will not be altering the underlining economic effect of the Agreement in respect to M. In SR v HR v SC (As Trustee in Bankruptcy of SR)

[2018] EWHC 606 (Note 1) the Court stated: -

“An order for the sale of property is essentially procedural; of itself, it does not alter proprietary rights”.

31. B. is simply seeking to refine/modify the procedural aspect of the Consent Order which is executory in nature “and is not seeking to change the proprietary nature of the Order/asset, based on the current change of circumstances. Essentially, it is a refinement of the Order for sale of the property. Therefore, it is submitted that it would be inequitable not to allow B. purchase M.’s one third share in light of the childrens’ wishes to remain in their home.

The law – Executory Orders

32. The U.K case of Thwaite v Thwaite [1981] 2 FLR 280 stated that where an order remains executory in nature, the court retains the power to refuse to enforce it, vary it and/or set it aside. Whilst the matter concerned a family law matter pursuant to the Matrimonial Causes Act, 1973, the Court deviated from the family Law Act and stated the power to refuse to enforce the executory order was correct as it would be inequitable to order the husband to complete the transfer of the property in circumstances where the wife left the property and returned to Australia. In Potter v Potter [1990] 2 FLR 27, Nicholls J stated, an executory order is an order which has still to be carried out – it has yet to be executed. A final order for a sale or transfer of property which, for whatever reason is not implemented would be a common example of an executory order.

33. In Kicinski v Pardi [2021] EWHC 499 (Fam), whilst this was a family law matter, the Court approached the application to vary the consent order made on the 24th October, 2019 on the established grounds of the Thwaite jurisdiction. The High Court accepted the analysis of the case law in the lower court given by Allen QC (“the Judge”) however overturned his decision not to vary the consent order previously entered into on the 24th October, 2019. Mrs Justice Lieven DBE in the Court of

Appeal overturning the decision of Allen QC (“the Judge”) reviewed the case law and stated that in Thwaite v Thwaite [1982] Fam 1, a consent order had been made by which the husband agreed to transfer the former matrimonial home to the wife on the basis she would return to the Uk from Australia to live with the children. However, she only returned to the UK for a short period and returned to Australia before the property had been transferred. At paragraph 27 Mrs Justice Lieven DBE, referred to the decision of Ormond LJ in the Court of Appeal in Thwaite wherein Ormand LJ stated:-

“Where the order is still executory, as in the present case and one of the parties applies to the court to enforce the order, the court may refuse if, in the circumstances prevailing at the time of the application it would be inequitable to so so: Mullins v Howell (1879) 11CHD 763, 766….”

34, The Court also referred to L v L [2008] 1 FLR 13, wherein Munby J. considered the Thwaite decision and the decision of Bracwell J. in Benson v Benson (deceased)

[1996] 1 FLR 692 wherein the Judge supported the existence of the power to vary an executory order but said it should only be exercised where it would be inequitable not to so because of, or in light of, some significant change in circumstances since the order was made.

35. Further reference was made to various other cases which upheld the Thwaite decision such as Bezeliansky v Bezelianskaya [2016] EWCA Civ 76 and US v SR (no 4)

Executory) Mainframe Distribution Order: change of circumstances: Extent of Court’s ability to Revisit Terms) [2018] EWHC 3207. In Bezeliansky, the Court of Appeal which considered an appeal from the decision of Moor J to vary a capital provision in a 2013consent order, McFarlane LJ at 37 cited Thwaite with approval and stated: -

“With respect to cases where there is an undertaking or an order that is still executory the approach to determining whether or not to set aside or vary the order is, as the appellant submits, based upon it being inequitable to hold to regarding the test where the jurisdiction may arise in other circumstances”

36. Also referring to US v SR (No 4) (Executory) Mainframe Distribution Order:

Change of Circumstances: Extent of the Court’s ability to Revisit Terms) [2018] EWHC 3207, the Court stated that the Court in US v SR referred to L v L and the decisions of Roberts J at paragraph 52 and stated (in L v L):-

“………. He confirmed that the essence of the jurisdiction is that it would be inequitable not to [vary its terms] because of or in light of some significant change in circumstances since the order was made”

37. On the analysis of the case law the Court in Kicinski stated the first question in deciding whether to exercise the Thwaite jurisdiction is whether there had been significant (and necessarily relevant) change of circumstances since the order was entered into; and the second question is whether, if there had been a change, it would be inequitable not to vary the order. In answer to these questions, the court at paragraph 55 stated,

“for these reasons I find that there was a significant change of circumstances, and the Wife reasonably and realistically believed that the Uncle and Aunt had agreed to the terms set out in clause 1 of the Heads of Terms”

38. The next issue for the court to decide was, was it inequitable to vary the order in the way sought. In response, the court held it was inequitable not to vary the order as sought. The reasoning was based on the fact that it would be inequitable to leave the wife exposed to a contingent liability. The Thwaite decision was followed as recently as 2023 in H v H [2023] EWHC 1542.

39. Furthermore, the Irish Courts have referred to the principles set out in Thwaite v Thwaite in N.F v E.F [2008] IEHC 471 wherein at paragraph 8, Abbot J. stated clear guidance had been given by Ormond J. in relation to the principles to be applied in respect to executory orders. Also, in P.C.R. (Otherwise C.R.) V G.R [2013] IEHC

635 the White J. referred to N.F. v E.F. and Abbot J.s reliance on the principles of Thwaite in respect to executory orders and stated at paragraph 25:

“In exercising the discretion vested in the court, when an order is executory it is in the process of execution, the court applies the test set out in N.F. v E.F., referred to in paragraphs 15 to 17.”

40. Also, A.Y v B.Y [2018] IEHC 411 and in Mason Hayes Curran v Marie Louise Queally [2018] IECH 614 wherein at paragraph 111 Mr. Justice McDermott stated:-

“I am also satisfied that this interpretation of Clause 11 and conclusion is supported by the line of authority based on the decision in Thwaite”.

41. Respectfully it is submitted that above principles have been accepted in this jurisdiction in both family law matters and civil matters (Mason Hayes). It is therefore submitted that due to the significant change of circumstances (R.’s passing)

together with the fact that as the children wish to remain in their family home, the Court may refine the term, following the authority in Thwaite v Thwaite as not to do so would be inequitable. That is, in circumstances where the children wish to remain in their family home together with the fact that the third party (M.) will receive the same amount of monies and/or more (monies) compared to that, if she sold on the open market.

Fresh evidence

42. Also, in Thwaite the Court of Appeal stated the Judge in the High Court had jurisdiction also to hear the husband’s appeal against the consent order and set it aside on the basis of the fresh evidence that the wife had no intention to make a home for herself and the children in the UK.

43. In Charalambous v Nagle [2011] IESC 11, Denham J. stated “Final orders are conclusive and may not be re-litigated except in circumstances such as indicated in Belville Holdings v Revenue Commissioners [1994] 1 I.L.R.M. 29 which dealt with the issue of amending an order where a clerical mistake arose.

44. However, two years later subsequent to the Charalambous decision the Supreme Court in Mulrooney v John Shee & Co. Solicitors and Ors,[2013] IESC 20 stated at paragraph 7.11 that to whatever extent it might be open to a Party to go back on a settlement reached because of the availability of fresh evidence (and the circumstances in which such a course of action could be adopted, if it is possible at all, would, undoubtedly be extremely limited), it could never be open to a party to seek to rely on the availability of fresh evidence which could, with reasonable diligence, have been made available at the time when a previous action involving the same allegation came to a settlement.

45. Also In Cafolla v O’Reilly [2017] IESC 20 [7,11]-[7,12] the matter travelled from the High Court on appeal to the Court of Appeal when the High Court and the Court of Appeal decisions were overturned in the Supreme Court with regard to setting aside a Settlement. O’Donnell J. in the Supreme Court held:-

“the conclusion that the Plaintiffs’ claim must be dismissed because they were clearly the subject of prior accord and satisfaction cannot be upheld”

46. The Court allowed the Plaintiff’s appeal from the Court of Appeal despite the fact they had previously entered into terms of settlement in respect to their claims against Fr. Smyth. The issue involved the Plaintiffs entering into a settlement in Northern Ireland with the Defendants in respect to being sexually abused by Fr. Smyth.

Thereafter, in 2012 new information emerged where it was established that in 1975 a witness had provided the name of one of the Plaintiff’s (namely, Mr. Cafolla) – the witness also gave Mr. Cafolla’s full address and postal code stating Mr. Cafolla was being abused. Mr. Cafolla alleged if any steps had been taken in 1975 when the witness proffered this information, then it was probable the abuse would have ended at that time and the abuse of the other Plaintiffs (Ms. Cafolla and Mr. Fusco) might not have begun. The Supreme Court remitted the matter to the High Court to proceed to full hearing with regard to the Plaintiff’s claims.

47. In following the above case law, it is submitted, B., in this instance may also rely upon the fact that due to R.’s passing, within five weeks of the Agreement being signed and whilst the property had not been placed on the market for sale, R.’s death, constitutes “fresh evidence” which the Court may rely upon in order to form its

decision as to whether or not to refine the mode of sale only.

48. It is further submitted the Court may exercise its discretion to refine the executory consent order with regard to the sale as it accords with good sense and what is reasonable. In Kelly v Minister for Agriculture & Ors [2021] IESC 62 the Court at paragraph 5 stated:-

“Discretion, however where vested in a court, is not equivalent to the arbitrariness.

What is fair and just is adjudged as against sets of precedents, on lines laid down through experience as to how the best outcome is arrived at……The law abhors what is capricious and moves towards the guidance of discretion by what has substantial and solid reason for its exercise”

49. At paragraph 6 the Court continued:-

“………While discretion is guided by precedent, and rightly so from the point of view of certainty of law, it parts with the rigidity of legal rules in not being constricted into a particular outcome simply because that result is recorded in a similar case elsewhere. Principles, rather, than rules, are laid down by precedent in discretion.

And since cases diverge in circumstances precedent should be regarded as a guide and not as governing outcomes”

50. In departing from the equitable principle of judicial discretion and dealing with final orders, Delaney and McGrath, Civil Procedure, Fifth Edition, page 914 states:-

“…As with any contract a settlement agreement may be impeached or set aside for a number of reasons, namely, breach, illegality, fraud, incapacity, mistake, misrepresentation, frustration, duress and undue influence” A further ground as stated by Delaney and McGrath is want of authority on the part of a legal adviser.

51. However, Delaney & McGrath did not refer to the issue of executory consent orders and/or the issue of judicial discretion as set out above.

52. For clarity, in O’Sullivan v Weisz [2005] IEHC 74 Finnegan P whilst setting aside a compromise on grounds of duress, stated, a compromise gains no additional status being embodied in an Order or being made a rule of Court.

53. For further completeness recent cases in the High Court and the Court of Appeal namely, Pas v O’Connor [2024] IECH 199 and R v C (Appeal of Consent Orders)

[2025] IEHC 76 and H v H [2025] IECA 145, can be distinguished from the current matter before the court. These cases involved Appellants bringing Motions on appeal to vary and/or discharge consent orders made in the lower Courts on grounds of duress and/or being coerced by the legal representatives into signing an Agreement.

The Court(s) found no evidence of duress/and or coercion. Also, in R v C Jackson J.

questioned if she had jurisdiction to hear an appeal from a consent order in circumstances where no evidence had been provided in the lower court.

Children/Constitution rights – Article 42A

54. Whilst the submissions are dealing with the law in respect to the Equity Agreement, the fact that the children now are in the shoes of R. so to speak, it is submitted the Court has jurisdiction to hear their voice and to exercise its discretion in a manner which favours the children’s wishes. In this regard, Article 42A of the Constitution of Ireland establishes the best interest of the child is paramount when the State intervenes to protect their safety and welfare. It also ensures that children have the right to have their views heard and considered in court proceedings that affect them, taking their age and maturity into account. Furthermore, it is submitted the Court is obliged pursuant to the statutory provisions in the family law Acts to consider the best interest of the children. Importantly, the Court has the benefit of the children’s voice as a consequence of the Affidavits filed before this Court in which they have averred they wish to remain in their home.

55. For clarity, with regard to the Court dealing with the death of a spouse in family law proceedings, In a recent family law case, similar to the current circumstances of the Parties herein (R.’s death), in A.,B.,C., and D., Personal Representatives and Executors of the Estate of E.F Deceased v G.H [2018] IEHC the Court noted at paragraph 35 that there was no reported Irish authority where the power of the Court to make orders in Judicial Separation or family law proceedings following the death of one of the Parties had been considered.

56. However, having considered the matter the Court in A.B.C and D. v G.H stated:-

“Having considered the circumstances of the instant case, I am satisfied that it would be fundamentally unjust and inequitable to seek to enforce the Order of the 12th June, 2008. Further this court is mindful of its duty to ensure that adequate and proper provision is made not only for the Parties but for the children of the marriage and will therefore grant the Order sought.

57. Consequently, the within matter before the Court is most unique, unusual, and extraordinary due to R.’s passing and her children now making their application to the Court to remain in their family home.

58. Also, whilst it is acknowledged the within submissions deal with the Equity Jurisdiction as set out above, it is further submitted the Court also has a further and third additional area to view the application from which is, reading both the Equity Agreement and the Divorce Agreement together in order to deal with the application.

In this regard the Land and Conveyancing Law Reform Act 2009 at section 31(5)

states:-

“Nothing in this section affects the jurisdiction of the court under the Act of 1976, the Act of 1995 and the Act of 1996”

59. Therefore, it is submitted the legislation envisaged a scenario occurring whereby the Equity and Family jurisdiction were engaged/triggered with regard to the same subject matter, as in this case. For example, in the within matter the Equity term in relation to the property states at para 2:-

“…The proceeds of sale payable to the Notice Party to be subject to Orders in Divorce proceedings Record No. 01288/2021”

And para 8 of the Family Law Terms (Divorce) of Settlement states:-

“The family home of the parties is being sold in the context of consent terms agreed in Equity proceedings bearing Record 2020/5443……..”

60. Consequently, it is submitted both terms may be read in conjunction with one another in the interest of the overall Agreement(s) and in the particular circumstances where all parties herein are/were related by marriage and blood. The section allows the Court to now consider the views of the children and what is in their interest and welfare which is, they wish to remain in the family home subsequent to the trauma suffered by the death of their Mother.

61. In conclusion however and dealing with the Equity Executory Order in isolation, it is submitted the Court may refine the order for sale on the basis of the principles set out in the Thwaite decision, that is, that it would be inequitable to enforce the term due to the change in circumstances. Additionally, and/or in the alternative, the Court may refine the Executory Order based on the fresh evidence (R.’s death) also on the principles of the Thwaite, Mulrooney and Cafolla decisions. In these circumstances, it is submitted M. will possibly achieve a higher price for her one third share on the basis there will be no auctioneering fees to be paid from the sale of the property. M. will still receive the one third share value in monies worth as agreed between the Parties, whilst all other relevant terms will remain the same.

62. Consequently, in all the circumstances it is submitted it is just and equitable for the Court to exercise its discretion and to refine the mode of sale in respect to the property thereby allowing B. to purchase M.’s one third share which will allow the children remain in their home which also accords with the principle set down in Kelly v Minister for Agriculture & Ors:-

“…….While discretion is guided by precedent, and rightly so from the point of view of certainty of law, it parts with the rigidity of legal rules in not being constricted into a particular outcome simply because that result is recorded in a similar case elsewhere. Principles, rather, than rules, are laid down by precedent in discretion. And since cases diverge in circumstances precedent should be regarded as a guide and not as governing outcomes”

Margaret Farrelly BL Instructed by McAleer & Co Solicitors on behalf of B.Q

10th September 2025

Annex “A” Equity Terms of Settlement 10th November, 2025 Divorce Terms of Settlement 10th November, 2025 Divorce Order 11th November, 2025

Annex ‘A’

SUBMISSIONS ON BEHALF OF THE DEFENDANT, Mrs. M.L

BACKGROUND

1. The proceedings herein arise out of a dispute in relation to a property situate at an address in Dublin (“the property”). The property was owned by the defendant, M.L and her late husband F.L and was the defendants’ former family home. The defendants’ daughter and notice party, R.Q, and her then husband the plaintiff, B.Q, resided in the defendant’s property from 2007 with R.Q leaving the property prior to institution of the equity proceedings.

2. The plaintiff issued an Equity Civil Bill dated the 12th October, 2020 and a Defence and Counterclaim was delivered by the defendants on the 11th February, 2022 which denied the claims made by the plaintiff in respect of the property.

3. The plaintiff issued judicial separation proceedings in 2019 and the notice party, R.Q, issued divorce proceedings in 2021.

4. The equity and divorce proceedings were linked by Order of the 25 th day of January 2022 which said Order specifically stated that the equity proceedings were to be heard first.

5. Both sets of proceedings, equity and divorce proceedings, came on for hearing on the 10th day of November 2022 and were compromised. Terms of Settlement were signed in the context of the within equity proceedings which provided, inter alia, an Order for the sale of the property with R.Q, notice party, to receive a sum equivalent to two thirds of the proceeds of sale, with the proceeds of sale payable to R.Q to be subject to Orders in the separate divorce proceedings. The Terms of Settlement were ruled, and Orders made, on the 11th November, 2022.

6. Tragically, the notice party, R.Q, passed away on the 15th December 2022.

7. The children of B.Q and R.Q were joined as notice parties by Order of this Honourable Court of the 16th day of January, 2025. The children are S.Q. (aged 21)

and L.Q. (aged 16). The children are entitled to the benefit of R.Q's share under the Terms of Settlement in the divorce proceedings on foot of specific terms provided therein in the event of R.Q’s death.

8. No Grant of Administration had been granted as of the date of the applications before the Court on the 23rd July, 2025. By Order of the 23rd July, 2025 S.Q. was appointed to act on behalf of the Estate of R.Q.

ISSUES:

9. The plaintiff is seeking to vary the Terms of Settlement under Section 31 of the Land and Conveyancing Reform Act, 2009 and remain in the property. It was proposed that the plaintiff would make a payment to the defendant equivalent to a one third share in the property and sought a further six months in which to do so.

10. The plaintiff is further seeking to use the children’s share of the proceeds of sale to acquire the property.

11. The defendant is seeking to enforce the Orders of this Honourable Court made under the equity proceedings which provided for the property to be put on the market for sale forthwith.

12. At the date of the hearing of the plaintiff’s motion to vary and the defendant’s motion to enforce, there was no representation on behalf of the Estate of the late R.Q.

Correspondence from the plaintiff’s solicitors of the 27th November, 2024 acknowledges that a Grant of Administration was required and stated that S.Q. was in the process of extracting the grant, but it is understood the application to extract the grant had only recently made and no grant had issued.

13. The defendant sets out at paragraph ‘e’ of the Grounding Affidavit of the 2nd December 2024 that it was R. Q’s wish that her share of the sale proceeds would be for the real benefit of the children and “...that they would receive the said sum of money in their hands and for their benefit”. The defendant was not a party to the divorce proceedings but was aware of the contents of the said terms having signed the Terms, and being a Trustee appointed under those Terms of Settlement and supported same for the benefit of the children.

14. The plaintiff now wishes to retain the property for his benefit and for the children. It is submitted on behalf of the defendant, however, that it was always intended that the property would be sold and that the terms provide clearly and unequivocally for the sale of the property. The tragic death of R.Q does not alter the position. The impact on the children was acknowledged by agreeing to postpone placing the property on the market for sale to April 2023 and that no completion would take place before the end of the school year. The plaintiff’s refusal to place the property on the market for sale has now resulted in 2 years and 10 months passing since an Order was made, on consent, that the property was to be placed on the open market for sale forthwith.

15. The Grounding Affidavit of the plaintiff of the 11th day of July 2023 states at paragraph 11 “…as a consequence of the unfortunate death of Ms. Q. the said Terms cannot be implemented save for paragraph 9-(d) in respect to the children receiving their now one third share between them”. It is not clear whether the plaintiff is referring to the terms under the equity proceedings or the terms under the divorce proceedings or both. In respect of the equity proceedings, it is submitted that the Order for sale can proceed as the defendant, M.L, who is the sole legal owner of the property has the full legal title to effect a sale subject to vacant possession.

Family Law (Divorce) Act, 1996 and applications to vary orders

16. Section 22 of the Family Law (Divorce) Act, 1996, and a change of circumstances, was relied upon on behalf of the plaintiff as a basis to vary the Order for sale. The Order for sale of the property, however, was made under the equity proceedings and the proceeds of sale were to be divided between the defendants and the notice party, R.Q

17. The plaintiff’s entitlement or interest arises from a lump sum payment from R.Q in the divorce proceedings under Section 13(1)(c) of the 1996 Act. The defendant is not a party to the divorce proceedings.

18. It is of note that even where an application is made in divorce proceedings for relief pursuant to provision of the Section 22 of the Family Law (Divorce) Act, 1996 there are limitations in respect of the orders the Court can make under that section.

19. The authorities relied upon on behalf the plaintiff were K(A) v K(J) [2008] IEHC 341 and PCR (otherwise CR) v GR [2013] IEHC 635 both of which relate to family law proceedings and not equity proceedings.

20. The case of PCR (otherwise GR) v GR, which was relied upon by the plaintiff, raised the issue of varying an Order which could not be varied under Section 22. At paragraph 15 White stated: “The only remedy open to the applicant is in accordance with the principles set out in the High Court judgement of N.F. V E.F (Divorce)

[2008] IEHC 471, [2011] 2 I.R. 100 Abbott J stated at p. 108 para. 7:- “In an extreme case, as in orders following a dispute on a contract or specific performance, it may arise that performance of the contract, or compliance with the order, is impossible, and it may well be that the discretion of the court would dictate that notwithstanding non-compliance by the defendant with the order, he would be discharged from his obligation to comply therewith without the risk of being in contempt of court.” In that case White J concluded at para 31 “This Court cannot accede to the application to vary, even though it would seem somewhat harsh on the face of it not to do so”.

21. It is submitted on behalf of the defendant that the sudden and untimely death of R.Q is not a change in circumstances which necessitates a variation or that compliance is no longer possible. It is further submitted that while there is provision in the divorce terms as to what was to occur in the event of the death of R.Q there is no provision that the sale of the property ought to vary in the event of such an occurrence in the Terms of Settlement in the equity proceedings.

22. It is also of note that the application to vary was brought under Section 31 of the Land and Conveyancing Reform Act, 2009. Section 31 of the Land and Conveyancing Reform Act 2009 it is submitted does not provide a legislative basis for a variation of Orders. It is the defendant’s position that the Family Law (Divorce) Act 1996 specifically provides a legislative basis in Section 22 for varying certain Orders made under the family law legislation, in certain circumstances. Section 22 of the Family Law (Divorce) Act, 1996 has no applicability to and does not extend to the equity proceedings under which the Order for sale was made.

Liberty to apply

23. Liberty to apply was granted in the equity proceedings. It is submitted that liberty to apply does not permit relitigating the proceedings but rather as stated in Donegal County Council v Ballantine [1998] IEHC 203 “Liberty to apply allows the parties to come back into Court and clarify the extent or application of the Order.”

Jurisdiction to vary Terms of Settlement

24. Attempts were made to try to accommodate the plaintiff and agree a variation, which still ensured the children’s interest were protected and could be realised, but this proved unsuccessful. The plaintiff has not been able to realise her interest in the property and further costs have been incurred in the circumstances and in having to enforce the Terms of Settlement. It is further submitted on behalf of the defendant that she wanted to try to conclude matters due to the detrimental impact on her and to avoid the necessity to litigate the matter further and to avoid incurring further costs at that time. Furthermore, the defendant personally and in her position as a trustee of R.

Q’s share under the divorce proceedings, which now transfers to the children, remains concerned as to how the children’s interest would be protected in the context of any proposed borrowing against the property.

25. The plaintiff, and his partner, who reside in the property, have had the benefit of residing in the property, without making any rental contribution, while in breach of an Order of this Honourable Court and during extended periods since the Terms of Settlement during which the defendant has been seeking to enforce the Order agreed in November 2022. The defendant contends at paragraph ‘u’ of her grounding affidavit that “…..the only manner in which this matter can be resolved is the sale of the property in accordance with the terms of settlement that were entered into on the 10th November, 2022.” The position is therefore that there is no agreement to vary the Terms of Settlement, and it is respectfully submitted that this goes to the issue of the Court’s jurisdiction to vary the Terms of Settlement in the equity proceedings.

26. Delaney and McGrath on Civil Procedure, Fifth Edition, states at para 20-45 “it has been observed that there is a “very considerable public interest in upholding the finality of settlements and courts have been traditionally wary of permitting any litigant to undo any such settlement” The extract quoted in para 20-45 is found in the case of Flynn v Desmond [2015] IECA 34 at paragraph 17 of the Judgement of Mr Justice Mahon. Para. 20-46 of Delaney and McGrath on Civil Procedure, Fifth Edition, states that “where a consent order has been made on foot of a settlement agreement, then fresh proceedings will have to be instituted if it is sought to have the order set aside on a ground such a mistake.” No separate set of proceedings have issued seeking to set aside the Terms of Settlement nor, it is submitted, are there grounds for any such application.

27. The equity proceedings were compromised on the 10th November, 2022 and Orders made on the 11th November, 2022 in accordance with Terms of Settlement. It is respectfully submitted that the Court is now functus officio in respect of the equity proceedings.

Conclusion

28. The defendant is 85 years of age and extremely anxious to conclude matters having entered Terms of Settlement in November, 2022 and had no benefit from the property, or any sale proceeds, since that date. The defendant has continued to pay the LPT and insurance on the property, as the legal owner, and has no financial benefit from the property since the Order for sale was made.

29. It is submitted that the Terms of Settlement and the Order for Sale of the property as per the Terms of Settlement of the 10th day of November, 2022 should be enforced forthwith, together with an Order for costs having regard to the necessity to bring an application to enforce the Order for sale, and the loss arising to the defendant in the delay in the sale, to the benefit of the plaintiff residing in the property, and such other Orders as are necessary to ensure compliance and vacant possession of the property for the purpose of the sale.

BEBHIN SPARKS BL 11th September 2025 Word Count: 2360

SUBMISSIONS OF S. Q, NOTICE PARTY. Background:

On the 10th of November 2022 a consent order was made compromising two actions that were heard together. These were divorce proceedings between B.Q (“the husband”) 1and R.Q (“the wife”) and also proceedings between the husband and M.L (“the grandmother”) (with the wife as a notice party) under section 31 of the Land and Conveyancing Law Reform Act 2009 in respect of the property at an address in Dublin (“the equity proceedings”). The equity proceedings related to the property in which the husband and wife and their two then dependent children resided, which was in the legal ownership of the grandmother and her husband in which an equitable interest was claimed.

The divorce proceedings resulted in consent orders which in material part provided that the monies received from the sale of the property where to be split in 2, with one third going to the husband and the other third to be held on trust for the benefit of the wife, the funds to be used to purchase accommodation for the wife, and upon her death it is to go to the children (S. and L.).

The consent orders in the equity proceedings provided for the property to be sold “…on the basis that the [wife] will receive a sum equivalent to two thirds of the net proceedings of sale (being gross price achieved less legal and auctioneering fees and capital gains tax payable by the Defendants….. The proceeds of sale payable to the [wife] to be subject to Orders in Divorce proceedings Record No. 01288/2021”. The remaining third was to be paid to the grandmother.

The order quite importantly provided for “Liberty to Apply”.

The wife died unexpectedly shortly after the terms were ruled, on the 15th of December 2022. She died intestate and S. and L. are her next of kin and entitled to succeed to her estate.

The husband has sought to re-enter the matter to vary both orders in circumstances where he and the children reside in the property, and he is a position to raise the money to discharge the 1/3rd value of the property nett of CGT to the grandmother.

S.Q. is now 21 (born on the 11th of April 2004) and has applied for letters of administration intestate in respect of the estate of the wife.

It does not appear disputed that the wife died intestate, nor that S.Q. and L.Q. (born on the 12th of November 2008) are her next of kin. David Stafford solicitors has been instructed by S.Q. and an application was made at the hearing of this action to reconstitute proceedings with him representing the interests of the late wife.

S.Q. and L.Q. are ad idem, with the husband’s view and application, they support his application to discharge the order for sale and are willing to post pone their interest in the property to enable this to occur.

Given the common surname and confusion re Applicant/Respondent as there were two actions, I propose to refer to the relevant parties by these descriptions.

Submissions

The children and the husband have put forward strong cogent reasons why the order should be varied, namely it will allow them to remain in the property in circumstances where due to the death of the wife they now have a 2/3rds beneficial interest in the property. This is a significantly different situation to when the orders were ruled some 5 weeks prior to the wife’s death.

By way of contrast, the grandmother’s position is simply she has an order, and she wants it enforced. While this is a simple position, it does not elaborate as to how she is prejudiced from the sale not proceedings if sums representing what she would have received in any sale have been offered to her. Furthermore, if the court finds any jurisdiction or discretion to accede to the husband’s application, significant reasons have been given to support it while very little has been said to justify not granting it save an assertion that as a final order it cannot be varied.

Variation of Divorce terms There is a clear statutory jurisdiction in s. 22 of the Family Law (Divorce) Act 1996 to vary orders made ancillary to a divorce, and the grand mother is not a party to those proceedings and both parties to those proceedings (the husband and estate of the wife) are consenting to such variation as is necessary.

Whether the order in the equity proceedings is a “final order”

It has been asserted that the order made in the equity proceedings is a “final order” and therefore cannot be varied save on consent.

While the order is quite clearly not an interlocutory order, it is submitted it is an executory order (an order that still has to be carried out). The jurisdiction to vary such orders was recognised in Thwaite v Thwaite [1981] 2 FLR 280 (and applied in this jurisdiction in NF v. EF [2011] I.R. 100.

Sections 40 and 42 of the County Officers and Courts (Ireland) Act, 1877

Section 22(3) of the Courts (Supplemental Provisions) Act 1961 vests in the Circuit Court the jurisdiction formerly exercised by the County Courts and the Chairman of Civil Bill Courts pre the Courts Act 1924.

The jurisdiction of the County Court was party governed by the County Officers and Courts (Ireland) Act 1877 which in sections 40(a) and 43 provided:

40. Proceedings under the authority of this part of this Act shall be taken in the Civil Bill Courts herein-after mentioned: that is to say,

(a.) Proceedings relating to the sale redemption or partition of any lands, or for enforcing any mortgage charge or lien upon any lands, or which pray an injunction to stay waste upon lands, shall be taken in the Civil Bill Court of the county in which the lands, or any part thereof, shall be situate:

…

42. Any decree or order in a proceeding under this part of this Act against which no appeal shall be pending, may be affirmed varied or rescinded, on a re-hearing in any case in which the chairman, upon special grounds, shall think such re-hearing necessary, and on such terms as to costs or otherwise as he shall think fit; but no such re-hearing shall be allowed after the expiration of three years from the making of the decree or order.

We are within three years of the making of the decree and there was no appeal taken and therefore there is an express jurisdiction under section 42 of the County Officers and Courts (Ireland) Act 1877 provided the judge “upon special grounds, shall think such re-hearing necessary”.

These provisions have not been repealed and are still in force and govern the jurisdiction of the Circuit Court today and there are no comparable provisions for the High Court.

The provisions are given effect in the current Circuit Court Rules which in Order 67 Rule 11 provides:

11. The application for re-hearing in any of the proceedings referred to in Section 42 of the County Officers and Courts (Ireland) Act, 1877, shall set forth fully the grounds upon which the re-hearing is sought, and notice thereof shall be filed in the Office and served upon the opposite party, or his successor in interest, not less than fourteen days before the opening day of the Sittings at which the application is to be made, or, in the Dublin Circuit, not less than six days before the day upon which the application is to be made.

It is submitted that there is adequate special reason to re-visit the decree, the notice of motion complies with Order 67 Rule 11 (and in so far as there is noncompliance, no one is prejudiced (Order 67 Rule 15), and we are within three years of the decree. The proceedings are of a type referred to in section 40(a) of the 1877 Act and therefore section 42 of the 1877 Act applies.

It is therefore submitted there is a statutory jurisdiction to re-visit the decree as provided for in s. 42 of the 1877 Act which is still in force and was given effect to in the Circuit Court Rules which were last revised in 2001.

Thwaite Jurisdiction

In Thwaite v Thwaite [1981] 2 FLR 280 a property adjustment order was not complied with by the husband due to a significant material change in circumstances from the making of the consent decree, the wife had represented that she and the children would reside in England and use the property as a family home, and this turned out not to be the case.

The English legislation (the Matrimonial Causes Act 1973 (UK)), in force at that time had a provision in section 31 of that Act similar to section 22 of the Family Law (Divorce) Act 1996 allowing variation of certain orders, but property adjustment orders under s. 24(a) were not included. There was therefore no statutory jurisdiction to vary the property adjustment order in issue.

The English Court of Appeal noted that orders could be varied if they were on the list in section 31 in accordance with the terms of s. 31(2):

“The effect of eliminating the contractual basis of these consent orders should simplify the problems. If their legal effect is derived from the court order it must follow, we think, that they must be treated as orders of the court and dealt with, so far as possible, in the same way as non-consensual orders. So, if the order is one of those listed in section 31(2) of the 1973 Act, it can be varied in accordance with the terms of that section. (See Brister v. Brister (1970) 1 WLR.664). But if it is not within the list, it cannot be varied by the court of first instance.”

The court however held there was a jurisdiction to vary if the orders were still executory noting:

Where the order is still executory, as in the present case, and one of the parties applies to the court to enforce the order, the court may refuse if, in the circumstances prevailing at the time of the application, it would be inequitable to do so. Mulling v.

Howell 11 Ch.D.763 and Purcell v. F.C.Tringell Ltd. (1961) 1 QB.358 at pp.367 and

368. Where the consent order derives its legal effect from the contract, this is equivalent to refusing a decree of specific performance; where the legal effect derives from the order itself the court has jurisdiction over its own orders per Sir George Jessell M.R. in Mullins v. Howell (supra) at p.766.

In NF v. EF [2011] I.R. 100 Abbott J. applied this principle at para 7.

The order of the court is executory. It is well accepted in this jurisdiction that during the course of the execution of an order, a court has general jurisdiction by way of adjournment, or adjournment coupled with a stay with or without a condition of payment of interest or such other conditions as to part payment or otherwise, as may be appropriate. In an extreme case, as in orders following a dispute on a contract or specific performance, it may arise that performance of the contract, or compliance with the order, is impossible, and it may well be that the discretion of the court would dictate that notwithstanding non-compliance by the defendant with the order, he would be discharged from his obligation to comply therewith without the risk of being in contempt of court.

Abbott J. set out some principles in respect of a Thwaite type application:

1. If parts of the provision made in the divorce decree become impossible, the court is obliged to consider what alternative provision may be made to ensure proper provision under the Constitution of Ireland 1937 and the Act of 1996.

2. If circumstances prevail during the course of the execution of the order whereby the circumstances of the case have fundamentally changed through a dramatic and unforeseen drop in property values, short of the impossibility of a sale of some crucial asset available for the provision in the order then, on the test of Thwaite v. Thwaite [1981] 3 W.L.R. 96, there may be circumstances where the court might not enforce that part of the order relating to the sale of such property unless alternative arrangements may be made for provision to ensure the balance and symmetry of the order previously made. However, the test in Thwaite v. Thwaite [1981] 3 W.L.R. 96, that it would be "inequitable"

to enforce the order in circumstances prevailing at the time of the application may be so general and neutral as to be misunderstood and I would prefer the application of the test posited by me in my judgment in A.K. v. J.K. (Variation of ancillary orders) [2008] IEHC 341, [2009] 1 I.R. 814 in the following passage at pp. 822 to 823:-

"[14] … hence, I conclude that the test as to whether a change, or changes, in circumstances ought to ground a strategic application going outside the limited circumstances envisaged by s. 18 should be that, ('other things' being equal) if they were of such a fundamental nature that it would be unfair and unjust to ignore such change or changes. The 'other things' to be considered before this necessary condition for a further strategic order to be made after a separation order may be made sufficient must, I conclude, be guided by the statutory framework set out in the provisions of s. 16(1) and (2), with the final overriding test of fairness and justice contained in subs. 5."

This statement may be equally applied to the treatment of change of circumstances under the divorce code, bearing in mind, of course, that the court in dealing with A.K. v. J.K. (Variation of ancillary orders) [2008] IEHC 341, [2009] 1 I.R. 814 could, with a freer hand, deal with what is termed as a strategic application on the basis that the order in that case, although still executory, was in fact twelve years old and was passed out by the lapse of time and other circumstances so as to have acquired, in large measure, the character of a final and fully executed order following which a strategic application (or for that matter a fine tuning application under s. 18) might have been made in the ordinary course of events.

3. As the court has no power to appeal itself or reverse itself, the court should, in the case of an executory order, be careful to ensure that, insofar as the circumstances of the case allow, the original intent, balance and symmetry of the order are maintained, while at the same time adopting whatever changes and adjustments in provision are necessary to ensure fairness and justice.

4. Along the lines suggested in my judgment in A.K. v. J.K. (Variation of ancillary orders) [2008] IEHC 341, [2009] 1 I.R. 814, the question as to whether there would be any change in the provision and the nature thereof depends not only on the necessary condition of a change of circumstances or of execution arising so as to make it fundamentally inequitable to seek to enforce that part of the order but also that the sufficient condition of the appropriateness of altered provision is met. I consider that while the court has a large discretion in relation to the course it might adopt in relation to this matter, it is not at large - as the Act of 1996 and the Constitution of Ireland 1937 apply to provision no matter how or when it is made.

It is submitted that the order in this case is executory, in that the sale still has to be carried out, and there are strong reasons to invoke the Thwaite jurisdiction, particularly when the grand mother is receiving the same amount of money as she would receive in a sale.

The Thwaite jurisdiction does not derive from any statutory authority to vary orders in matrimonial litigation but from the jurisdiction of a court over its own orders when they remain executory. Although the Thwaite jurisdiction most commonly is seen in family law proceedings where executory orders are routinely granted, it is not by its terms limited to those types of proceedings.

In Riordan v Moon Beever Solicitors (A Firm) [2018] EWHC 1452 (QB) involved a Plaintiff applying by the English equivalent of a Special Summons for a detailed assessment of a bill of costs delivered by their former solicitors (the equivalent of seeking party/party taxation in this jurisdiction).

The proceedings were struck out due to a default by the Plaintiff’s side, a consent order was however agreed where the proceedings could be re-instituted provided they made a payment on account to the Defendant’s solicitors by a particular date.

They subsequently applied to vary the consent order due to a material change in circumstances in that they only recently became aware that they may have a claim for professional negligence against the Defendant firm.

Foskett J. referred to Thwaite noting:

Thwaite v Thwaite -Thwaite v Thwaite [1982] Fam. 1, [1981] 1 WLUK 719 was a matrimonial finance case which had not been referred to in Safin, Safin considered. It was authority for the proposition that where an order, even made by consent, was still executory and one of the parties applied to the court to enforce the order, the court might refuse it if, in the circumstances prevailing at the time of the application, it would be inequitable to do so. Reliance for that proposition had been placed on Mullins v Howell (1879) 11 Ch. D. 763, [1879] 6 WLUK 49 and Purcell v FC Trigell Ltd (t/a Southern Window & General Cleaning Co) [1971] 1 Q.B. 358, [1970] 6 WLUK 60. Those were all decided pre-CPR, but the approach might still have a role to play. If so, it would have been a jurisdiction that could have been invoked in the instant case, Thwaite, Mullins and Purcell considered (para.32).

Although this was a discrete judgment dealing with a simpler procedural matter, it does not appear to have been considered that Thwaite was limited to matrimonial litigation.

Execution of Orders for Sale

As an order for sale, execution is governed by Order 43 of the Circuit Court Rules.

Order 43 Rules 1-5 of the Circuit Court Rules provide:

1. If, in any action or matter relating to land, it shall appear necessary or expedient that the land, or any part thereof, shall be sold, the Court may order the same to be sold, and any party bound by the order and in possession of the land, or in receipt of the rents and profits thereof, shall be compelled to deliver up such possession or receipt to the purchaser, or to such other person as the Court may direct.

2. Where a sale, mortgage, partition or exchange is ordered, or an order is made under section 31 or section 94 of the Land and Conveyancing Law Reform Act 2009, the Court, in addition to the powers already existing, may authorise effect to be given to its order:

a. by laying proposals before the Court for its sanction; or b. by proceedings out of Court, and any moneys produced thereby shall be paid into Court, or to trustees, or otherwise dealt with as the Court orders;

provided always that the Judge shall not authorise a sale out of Court unless and until he is satisfied that all persons interested in the land are before the Court, or are bound by the order.

3. When any property is ordered to be sold, the order shall direct who shall have the carriage of the sale and where the same shall be held, and by whom the conditions and contracts of sale and abstract of title, if any such be necessary, shall be prepared.

Whenever in an action for the administration of the estate of a deceased person, or the execution of the trusts of a written instrument, a sale is ordered of any property vested in any executor, administrator or trustee, the conduct of such sale shall be given to such executor, administrator or trustee, unless the Judge shall otherwise direct.

4. The Judge may refer to a Counsel appointed by him any matter relating to the investigation of the title to any land with a view to an investment of money in the purchase, or on mortgage thereof, or with a view to a sale thereof, or to the settlement of a draft or a conveyance, mortgage, settlement, or other instrument, or any other matter which the Judge may think fit.

5. Where a judgment or order directs any property to be sold, unless otherwise ordered, the same shall be sold to the best purchaser, and if the sale be approved by the Court, all proper parties shall join in the sale and conveyance as the Court shall direct.

Order 43 Rule 2(b) provides that the court may sanction a particular mode of sale and what is being requested here is that the sale be to the husband at a price fixed by the court.

This is a proposal for execution of the order for sale for which sanction is sought from the court. It is executing the order for sale in a particular manner that does not change the substance of what is ordered, the grandmother’s only interest in the order is receiving her 1/3rd of the value of the property.

The order also provided for “liberty to apply”, Halsbury’s Laws of England para 1567 10th Edition notes:

The circumstances or the nature of a judgment or order often render necessary subsequent applications to the court for assistance in working out the rights declared.

All orders of the court carry with them inherent liberty to apply to the court, and there is no need to reserve expressly such liberty in the case of orders which are not final.

Where in the case of a final judgment the necessity for subsequent application is foreseen, it is usual to insert in the judgment words expressly reserving liberty to any party to apply to the court as he may be advised. The judgment is not thereby rendered any the less final; the only effect of the declaration is to permit persons having an interest under the judgment to apply to the court touching their interest in a summary way without again setting the case down. It does not enable the court to deal with matters which do not arise in the course of working out the judgment, or to vary the terms of the order except possibly on proof of change of circumstances. Should the declaration be omitted, application may be made to have the judgment rectified by inserting it. It will not, however, be made or implied in favour of a defendant as against whom the claim has been dismissed for any other purpose than for enforcing the terms of the order, nor in favour of a claimant whose cause of action disappeared before trial but who fears that the circumstances giving rise to the cause of action may recur

. Halsbury cites Cristel v. Cristel [1951] 2 ALL ER 574 in support of the proposition that a change of circumstances can be used to vary the terms of a judgement when Liberty to Apply has been granted. In that case a consent order was made that the husband’s application under the Married Woman’s Status Act 1882 for delivery up of the family home for sale should be stayed until he provided an alternative house, he sought to vary this to include the words “…or flat” under the Liberty to Apply provisions of the order.

The application was refused, the majority (Dening and Somervell LJ) held however held a change of circumstances occurred the court must have granted the application. Denning LJ. Noting:

“If there was an unforeseen change of circumstances, as, for instance, if the wife was left by will another house or if she took an adulterer to live with her in this house, I should have thought the “liberty to apply” would enable the court to remedy the position—I should have thought the case of Abbott v Abbott was sufficient authority for that—but when there is no change of circumstances, I do not think the court can alter or vary the agreement of the parties under the “liberty to apply.” It can only do what is necessary to carry the agreement into effect. I agree that the appeal should be allowed”

It is submitted that the court has authority under Order 43 and/or under the Liberty to Apply which was granted to give directions as to the moder and manner in which the order for sale is executed.

The order for sale can be executed by the property being sold to the husband at a price fixed by the court, and this is what is sought by the husband (supported by the children). The current order for sale does not direct sale on the open market nor does it fix a reserve price.

Conclusions

It is submitted that there is a statutory jurisdiction vested in the court under section 42 of the County Officers and Courts (Ireland) Act, 1877 to re-visit a decree made in exercise of the court’s equitable jurisdiction within three years of the decree for special reason. There is adequate special reason, we are within three years and no appeal was taken from the decree.

It is submitted that the Thwaite jurisdiction is applicable as this is an executory order that has not been executed and it would be wholly unjust and inequitable to force execution in the manner contended by the grandmother having regard to the change of circumstances. The Thwaite jurisdiction is not limited to matrimonial cases. Without prejudice to this, Liberty to Apply was granted, and the court has a discretion both on foot of the Liberty to Apply and pursuant to Order 43 to sanction proposals for sale.

The court therefore independently of any jurisdiction it has to vary the order, an ability to sanction and authorise a sale of the property to the father at a price fixed by the court. This is in effect what is being sought.

The husband and the children are not attempting to re-open what was determined by the consent order (that the grandmother receive 1/3rd of the proceeds of the property net of CGT), merely the form and manner in which the order is executed.

The court has a jurisdiction to give directions as to the execution of the order independent of its Thwaite jurisdiction to revisit the order to ensure justice having regard to the fundamental change in circumstances.

The grandmother has put forward no cogent reason why the father and children should be forced to vacate, and the costs of sale incurred when she has been tendered 1/3rd of the price she would receive in any sale. Her only interest is in that 1/3rd value, the interests of the late wife have vested in S.Q. as legal personal representative. It is clear from the terms of the proposed trust in the family proceedings that she intended the children to inherit her interest in the value of the property in any event.

DERMOT FRANCIS SHEEHAN Word Count 4,603

REPLY TO THE LEGAL SUBMISSIONS SUBMITTED ON BEHALF OF THE DEFENDANT, MS. M.L DATED 11th SEPTEMBER 2025 (ON BEHALF OF B.Q)

(Ref – Background)

1. It is respectfully submitted in reply to paragraph 1 of Ms. M. L’s submission that whilst she was the legal owner of (“The Property”), both B. and R. retained a beneficial ownership in the said property. In this regard, the beneficial ownership of both B. and R. was reflected in the Terms of Settlement agreed between all Parties on the 10th November, 2022 including Ms. M.L, whereby R. was to receive two thirds of the proceeds of sale and transferring to the Divorce proceedings was to give one third of the sale proceeds to B. net of tax. (Based on the best tax advice).

2. In further reply to paragraph 1, Ms. R.Q left the family home (“The Property”) in 2018 whilst B. remained therein caring for the two dependent children who were 14 years (S.) and 10 years (L.) to the exclusion of R. (due to her difficulties).

Furthermore, it was B.’s contention that both M. and F.L offered (“The Property”) to both B. and R. in 2007 as M. and F. were future inheritance planning with regard to their assets. Consequently, B. and R. with one child, namely S., in 2007 relocated to The Property. For clarity, in the Equity proceedings, subsequent to Notice for Particulars being raised by B., M. and F.L also clarified by way of reply that they had also gifted a property at a separate address in Dublin to their son, N.L., by way of Deed of Assignment on 24th July, 2006 (some months prior to the conversation with

B. and R. in respect to The Property).

3. Crucially, once R. left the family home and children, some 11 years later in 2018, Ms. M.L and F.L commenced sending threatening Solicitors letters to B. requesting him and obviously the children, M.’s grandchildren, to vacate the property which in turn forced B. to file his Equity proceedings in respect to his beneficial interest in the property.

4. In reply to paragraph 4, as the Equity proceedings and Judicial Separation Proceedings/Divorce proceedings involved the same subject matter, namely (“The Property”) it was necessary to determine M.’s share in the property, if any, to enable the Court to then determine the asset(s) available in the family law proceedings.

5. In reply to paragraph 6, for clarity, whilst R. unfortunately died on 15th December, 2015, subsequent to the filing of the submissions by all Parties on the 12th September, 2025, thereafter on Friday, 17th October, 2025, R.’s Partner was found guilty of murder in respect to R. and sentenced to life imprisonment in the Central Criminal Court.

(Ref – Issues)

6. Paragraph 9 of Ms. M.L’s submission is accepted. B.Q offered to discharge the sum in monies worth in respect to (“The Property”) on 30th January, 2023 which was 8/9 weeks hence the signing of the Settlement Terms. This offer was refused by M.L.

7.` In reply to paragraph 10, S. and L. wish to remain in their family home and subsequent to receiving independent legal advice together with tax advice they both remain adamant they wish to remain in their family home.

8. Paragraph 12 is accepted. For clarity, both S. and L. (through her next friend) have agreed to have a Trust Deed set up which will incorporate S. waiving his right to avail of his one sixth share for a period of four years (2029) when L. reaches the age of 21 years when both can then avail of their share.

9. In reply to paragraph 13, there is no express reference in the divorce terms stating R.’s share of the sale proceeds would be for the real benefit of the children and that as alleged by M.L ‘the children receive the said sum of money in their hands and for their benefit’ This statement by M.L is misleading. What is clear however is, paragraph 9 of the said (“Divorce Terms”) expressly states:-

• “The second third of the two thirds receivable by the Applicant (R.) from the said sale proceeds (Being one third of the net proceeds therefrom as defined therein less 50% of any Capital Acquisitions Tax being paid by M.L, the Applicant’s mother and the First Named Defendant in the annexed equity proceedings) shall be held on trust for her (R.) benefit during her lifetime and thereafter for the benefit of the children of the marriage, S. and L., subject to the following terms:……….-

(a) The Trustees shall be J. O’C. (accountant) and M.L.,,,,,,

However, no Trust Deed was completed and/or registered with the relevant authorities. Therefore, no Trust was operational prior to the death of R..

10. Moreover, it is not appropriate now for Ms. M.L to state at this juncture what she believed R. wanted. This statement by M.L is hearsay only and cannot be given any weight by the Court.

11. Crucially, the hearsay also fails to recognise the intention of the Parties as set out in the Divorce Terms which expressly state what should occur if something should happen to R. at paragraph 9 (j):-

a) “In the event of a change of circumstances of the Applicant’s (R.) health and wellbeing which renders the purchase of a property by the Trustees for the benefit of the Applicant (R.) unworkable, the trustees shall take NO steps in relation to the

Trust fund in the absence of advance agreement with the Respondent (B.) or in default of such agreement liberty to apply between the Parties”

12. Consequently, it is submitted whilst the Trust Deed was not executed and/or registered by M.L, it is clear that if same had occurred then the provision regarding “liberty to apply” as stated in the Agreement at 9 (j) provides B. and now the children standing in the shoes of their deceased mother to apply to this Court to vary the mode of sale in relation to (“The Property”). Notably, the intention of all Parties is evident from the term agreed by all Parties including M.L, that in the event of a change of circumstances in respect to R. which rendered the purchase of a property for R. unworkable, all Parties had the right of “liberty to apply” to the Court in default of Agreement between them. This also deals with the submission by Ms. M.L in respect to her submission referring to “Liberty to Apply” at her paragraph 23.

13. In reply to paragraph 14, B. accepts it was intended the property would be sold, however, the submission on behalf of M.L that R.’s death does not alter the position, fails to recognise the fact and/or take into account that there is a significant change of circumstance which has occurred since the signing of the Terms on the (10th November, 2022 (Equity) and 11th November, 2022 (Divorce). The significant change of circumstance being the untimely death of R. some 5 weeks later on the 15th December, 2022. To say otherwise is simply extraordinarily incorrect.

14. In further reply to paragraph 14, Ms. M.L states she acknowledged the impact upon the children on the death of their Mother such that she agreed to acquiesce in placing the property on the market for sale for 4 months to April, 2023. She then goes on to submit that as B. had not placed the property on the market for sale, a further 2 years and 10 months elapsed.

15. In reply to the foregoing, notably, what Ms. L. fails to submit to the Court is, that on 30th January, 2023 only some 4 weeks subsequent to R.’s death she received correspondence through her Solicitor, on behalf of B. who instructed his Solicitor to offer the value of one third share in the property to M.L. In this regard B.’s Solicitor stated “Our client instructs that he would like to buy out your client, M. L’s one third share of the property located at an address in Dublin” …..” (letter annexed hereto at Annex “A”). This was only 4 weeks subsequent to the death of R. and 8 weeks subsequent to the signing of the Terms and prior to any Trust Deed being completed and/or registered. Crucially, the offer was refused by Ms. L. by way of correspondence dated 8th March 2023. (see letter annexed hereto at Annex “A” also).

Consequently, due to Ms. L.’s refusal to accept B.’s offer of her one third share in monies worth, B. was forced to apply to the Court by way of Motion to vary the mode on sale only, which was filed on 11th July, 2023.

16. In reply to paragraph 15, in reply to the query of Ms. L., B. is referring to paragraph 9(d) of the Divorce Terms of Settlement. Additionally, whilst M.L states she is the sole legal owner of the property, it is submitted she holds only one third of the property beneficially due to the Equity terms agreed by the Parties. It is further submitted that as R. was to receive two thirds of the sale proceeds of the property and thereafter provide B. with one third net after the discharge by her of 50% CAT, (with M.L also to discharge the other 50% CAT) both B. and the children actually retain two thirds beneficial interest in the property between them (as the property is not sold)

due to R.’s passing with the children now retaining the benefit of R.’s inheritance between them as R. died intestate.

(Ref -Family Law (Divorce) Act, 1996 and applications to vary orders)

17. In response to paragraphs 16 – 20 of the submission on behalf of Ms. M.L, each paragraph fails to acknowledge B.’s original written submission to the Court which was, the order(s) are executory in nature (see his original submission at paragraph 39)

where the Thwaite principles were accepted in NF v EF and referred to in P.C.R.

(Otherwise C.R) and also in Mason Hayes Curran v Marie Louise Queally [2018] IECH 614 at paragraph 111 which was not a family law matter. Consequently, B. is not relying upon section 22 of the Family Law (Divorce) Act, 1996 as suggested.

Furthermore, whilst M.L was not a Party to the Divorce proceedings she was a signatory to both Terms of Settlement. Therefore, it is submitted both Terms must be read in conjunction with one another.

18. In reply to paragraph 21 of Ms. M. L’s submission, as already stated herein, it is not accepted on behalf of B. that the untimely death of R. is not a change of circumstances which necessitates a variation. It is submitted that such a statement is absurd in the particularly unique circumstances of this case. In fact, not simply the untimely death of R. but now with new evidence provided since the original submissions to the Court on 12th September, 2025, that is, R. was murdered by her Partner and her Partner found guilty of her murder and given life imprisonment by a Judge of the Central Criminal Court on Friday, 17th October, 2025.

19. Of particular note to the above is the fact that all Irish news channels on Friday, 17th October 2025 carried a photograph of R. and relayed the circumstances of her murder at the hands of her then Partner. A photograph of R.’s murderer/partner was also splashed across the news channels. Of further particular note is that the victim impact statement provided to the Court by M.L prior to the sentencing of R.’s Partner was to the effect that R.’s children will now be left without their Mother, Ms. L.

referring to the impact this will have upon them. Consequently, to say the untimely death of R. is not a change of circumstances is extraordinary and refuted. Crucially, the news item in respect to R. undoubtedly affected the children and had a considerable emotional impact upon them to their detriment. Indeed undoubtedly, the children in L.’s school and individuals in S.’s college may also have become aware of the issues surrounding both S. and L. which may have had a further impact upon them.

20. In further response to paragraph 21, wherein Ms. L. states section 22 of the Family Law (Divorce) Act 1996 has no applicability and does not extend to the equity proceedings, it is again submitted the Thwaite principles deal with the variation as requested by B. and the children and set out in B.’s original written submissions to the Court in respect to varying the mode of sale. Additionally, it is submitted the Court also has jurisdiction following the ‘Fresh Evidence” principles set out in Mulrooney v John Shee & Co. [2013] IESC 20 and Cafolla v O’Reilly [2017] IESC coupled with the Courts exercise of discretion in favour of varying the mode of sale following the principles laid out in Kelly v Minister for Agriculture & Ors, and particularly taking into account Article 42A with regard to the wishes and voice of the children which is set out on Affidavit by each of them and is before this Court.

21. In response to paragraph 22, it is not accepted there is no jurisdiction to vary the mode of sale pursuant to the Land and Conveyancing Act, 2009 as amended. B.Q relies upon the principles set out above at paragraph 20.

(Ref – Liberty to apply)

22. In reply to paragraph 23, B. acknowledges and accepts the submission submitted on behalf of the children at their paragraphs 19, 20 and 21 in reference to “Liberty to apply” as stated in Halsbury’s Laws of England where it is stated that:-

“The circumstances of the nature of a judgment or order often render necessary subsequent application to the court for assistance in working out the rights declared.

All orders of the court carry with them inherent liberty to apply to the Court, and there is no need to reserve expressly such liberty in the case of orders which are not final…………It does not enable the court to deal with matters which do not arise in the course of working out the judgment, or to vary the terms of the order except possibly on proof of change of circumstances……”

23. In further reply to paragraph 23, the submission on behalf of Ms. M.L fails to add and acknowledge that the Court in Donegal County Council v Balantine [1998] IEHC 203 which she relies upon in her submission further stated “

“the only effect of the declaration is to permit persons having an interest under the judgment to apply to Court touching their interest in a summary way without again setting the case down. It does not enable the Court to deal with matters which do not arise in the course of working out the judgment, or to vary the terms of the order except possibly on proof of change of circumstances”.

24. Therefore, B. also relies upon the statement of the Court in Donegal County Council in support of his submission to vary the mode of sale due to the change of circumstances which have occurred in case.

(Ref – Jurisdiction to vary Terms of Settlement)

25. In reply to paragraph 24, Ms. M.L refused all proposals proffered to her by B.’s legal team in respect to (“The Property”). The first proposal being to purchase M. L’s one third share in the property (refer letter annexed hereto at Annex “A”) some five weeks after the death of R. in January 2023 (which was refused on the basis M.L simply wanted the property sold, no cogent reason was provided to B.Q as to why M.L simply wanted the property sold. This was further in circumstances where Ms. L.

was informed the children were traumatised and wished to remain in their family home.

26. Moreover, in circumstances where M.L states further costs have been incurred as she was forced to bring a motion to enforce the Terms, it is submitted it is Ms. M.L who has escalated costs in this matter indeed to the detriment of B. and the children as at all times B.Q attempted to settle the matter with Ms. L. from the outset.

27. Furthermore, Ms. M.L also states she is in a position as a trustee of R.Q.’s share.

This statement is incorrect as Ms. M.L is not a Trustee of R.’s share as the Trust Deed was not executed and/or registered. To state she is a Trustee of R.’s share is incorrect and misleading. Moreover, for Ms. L. to state she is concerned regarding the children’s interest in circumstances where she is attempting to put them out of their family home in circumstances where they have stated on affidavit they wish to remain, is simply without any foundation and/or regard to their interest and/or welfare.

28. Furthermore, Ms. L. also states she wanted to conclude matters due to the detrimental impact upon her. Extraordinarily however, she does not refer to the detrimental impact upon her two grandchildren who have lost their mother. Ms. M.L simply concretes on what she wants and fails to admit and/or acknowledge to this Court, the detrimental impact the death of their mother has had upon the children (her grandchildren). Crucially, not only the death of their mother but now the actual circumstances surround the death of R., namely the murder of R. at the hands of her then Partner.

29. With regard to the costs issue, whilst it is the only family home which the children and B. possess, in contrast, Ms. M.L in reply to Notice for Particulars raised on the 10th February, 2022, on behalf of B. (in his Equity proceedings) stated she owned the following assets:-

An address in Dublin,

An address in Dublin and An address in Dublin.

Further, all properties were unencumbered, and she received rental income in respect to an address in Dublin together with rental income in respect to her warehouse at an address in Dublin. (See Notice for Particulars and Replies to Particulars annexed hereto at annex “B”).

30. It is again submitted it is Ms. L. who has escalated costs in the within proceedings as she can afford to do so unlike B. and/or the children as B.’s income is centred upon his employment only. Consequently, Ms. M. L’s paragraph is refutedrefuted in its entirety.

31. In reply to paragraph 25, it is submitted the reference by Ms. M.L to B.’s now Partner in circumstances where R. left the family home in 2018 is stated by Ms. M.L, to attempt to muddy the waters before this Court and to attempt to place B. in an unfavourable light before the Court. This is particularly so in circumstances where B.’s Partner was interviewed by the Section 32 Assessor in the family law proceedings as both B. and his Partner were caring and rearing the two dependent children at the time of the assessment and to the exclusion of R. (due to her difficulties). In those circumstances certain recommendations were made by the Assessor in respect to R. with regard to supervised access to the children which R.

seldom availed of. It should also be noted it was not B.’s wish to raise the issue of R.

and access to their children however, he is now forced to do so, due to the spin and underlying assertions made by Ms. M.L in respect to B.’s Partner. Furthermore, whilst Ms. L. states the Plaintiff and his partner reside in the property, she fails to acknowledge and submit the reality of the situation which is the children reside therein also.

32. Furthermore, the statement by Ms. L. also in paragraph 25 that she is receiving no rental contribution since the terms were signed in respect to (“The Property”) is quite outrageous in circumstances where B. and the children de facto hold two thirds beneficial interest in the property and Ms. L. was offered her one third share in monies worth some 8 weeks in January, 2023, subsequent to the said signing of the Terms.

33. In further response to paragraph 24, it is noted Ms. L.’s position is that there is no agreement by her to vary the Terms of Settlement. However, it is not accepted that Ms. L.’s non agreement goes to the issue of the Courts jurisdiction disallowing the variation of the Terms of Settlement. It is respectfully submitted this submission is incorrect. As stated, the Court has jurisdiction based on B.Q’s written submission and the children’s written submission previously submitted (12th September, 2025).

34. In reply to paragraph 26, it is submitted B. Q’s written submissions at paragraphs 50 and 51 deals with this issue. B. is not seeking to set aside or vary the terms of settlement on grounds of mistake, breach, illegality, fraud, incapacity, misrepresentation, frustration, duress and/or undue influence. Whilst Ms. M.L relies upon the case of Flynn v Desmond [2015] IECA 34 in support of her argument, she fails to advise the Court that Flynn was not a case which dealt with a change of circumstances as in this case. In this regard, the case of Flynn concerned a personal injury action where on the 24th December, 2009, the applicant wrote to the respondent’s solicitor advising him that he had changed his mind and, effectively, rejected the settlement. He complained that he had not been given sufficient time to obtain legal advice, he claimed he was pressurised into a settlement under threat of future legal proceedings against him, and he returned the cheque for €5,500. The Court rejected the Applicant’s argument on the grounds of public policy. Crucially however, Flynn can be distinguished from the change of circumstance cases and/or fresh evidence cases submitted by B.Q and thus Flynn is not relevant to this particular issue and is distinguished.

35 In reply to paragraph 27, it is respectfully submitted the Court is not functus officio as submitted by Ms. L. as it has discretion to vary the mode of sale relying on Kelly v Minister for Agriculture & Ors which dealt with Court’s exercise of discretion, indeed stating “The law obhors what is capricious and moves towards the guidance of discretion by what has substantial and solid reason for its exercise” ( Referred to at paragraphs 48, and 49 in B.Q’s original written submissions) together with the principles laid down in Thwaite and the fresh evidence principles laid down in Mulrooney v John and Cafolla v O’Reilly combined with the Court taking account of Article 42A with regard to the voice of the children.

(Ref- Conclusion)

36. In reply to paragraph 28, Ms. M.L states she is concerned as to not receiving sale proceeds since the signing of the Terms of Settlement in November, 2022. This statement is, once again, an extraordinary statement in circumstances where her agreed one third share was offered to Ms. L. five weeks (January 2023) subsequent to the death of R., which she refused, instead insisting upon a sale (with no cogent reason provided as to why, in circumstances where she would be receiving the same amount of monies). Moreover, to state she has had a lack of financial benefit from the property since the Order for sale was made appears to be an all-consuming statement in respect to financial benefit with no thought of the children, her grandchildren and the circumstances surrounding the death and indeed the murder of their mother. In this regard, the Court is referred to paragraph 29 above which sets out the current properties owned, unencumbered and rented by Ms. L. Moreover, whilst Ms. L.

makes all consuming reference to her financial benefit she has failed to make any reference or thought to the emotional benefit to the children, her grandchildren, remaining in their family home for the future due to the change of circumstances in the case.

37. In reply to paragraph 29, Ms. L. seeks to enforce the order for sale of the property forthwith with an order for vacant possession together with an order for costs. She states she was forced to bring a Motion to enforce the terms of settlement. In reply to this submission and to be clear, B.Q brought his motion before the Court on the 12th October, 2023 (filed in July, 2023) when all attempts at settlement failed. To reiterate, on the 30th January, 2023 by letter and some two months subsequent to the Terms being signed, B.Q’s Solicitors offered on behalf of B.Q to Ms. M.L, one third in monies value for her one third beneficial interest in the property. Thereafter, some

15 months elapsed with tax advice taken by both B.Q and M.L together with settlement talks which all failed. Crucially, all parties agreed the value of the property being €950,000(one third being €316,666.60) Thereafter, on the 16th January, 2025, Ms. L. brought her Motion to enforce the term to have the property sold in order to obtain her one third share which she had been offered in any event, in response to B.’s original Motion to vary. Therefore, it is submitted, again in respect to the costs issue, it is Ms. M.L who has escalated costs in this matter. Consequently, B.Q seeks his costs to date should he be successful in his application.

38. Furthermore, ironically Ms. M.L now appears to seek vacant possession of (“The Property”) and thus is seeking to vary the Order by seeking ‘vacant possession’ when no such term was included in the original terms of settlement. That is, despite her submissions to this Court that the Terms cannot be varied. Undoubtedly, this is a contradiction in itself.

B.Q’s conclusion

39. In conclusion, it is submitted Ms. L. relies upon what she states are full and final orders in requesting to enforce a sale of (“The Property”). She relies upon the case (Flynn) together with the fifth edition of Delaney & McGrath in this regard.

However, Flynn and Delaney can be distinguished from the principles set out in the case law submitted by B.Q as neither Flynn or Delaney refer to the cases involving a change of circumstances where orders are executory in nature such as Thwaite, or to the fresh evidence principles where orders are made but new evidence has arisen and which was not available at the time of the settlement such as Mulrooney v John Shee & Co. and Cafolla v O’Reilly. Furthermore, no reference was made by M.L to the wishes of the children. Conversely, B.Q has also submitted Article 42A gives the Court jurisdiction to hear the voice of the child, which is, they wish to remain in their home and further submitted the Court has power to vary the mode of sale by exercising its discretion to do so following Kelly v Minister for Agriculture & Ors.

40. In conclusion, the only variation B.Q is seeking the Court to consider is the variation of mode of sale of the family home and nothing else. No further variation is sought.

Margaret Farrelly BL Instructed by McAleer & Co Solicitors on behalf of B.Q.

23rd October, 2025

‘Annex A’

‘Annex B’

REPLY TO SUBMISSIONS ON BEHALF OF S.Q. AND REPLY TO SUBMISSIONS ON BEHALF OF B.Q

The defendant, M.L, delivers the within submissions by way of reply to the submissions on behalf of B.Q of the 10th September 2025 and submissions on behalf of S.Q, undated. Insofar as the submissions under reply are not addressed in the within documentation, said issues have been addressed in the outline legal submissions on behalf of M.L delivered on the 11th September 2025 and it is not intended to repeat same herein.

1. The submission on behalf of the S.Q. that M.L’s only interest in the Orders is receiving her one third interest of the value of the property fails to take account of:

a. M.L’s interest in realising the late R.Q’s wish that her share of the sale proceeds would be for the real benefit of the children.

b. That M.L has been prejudiced by the delay in the sale of the property.

c. The refusal to place the property on the market for sale to realise it’s true value in contravention of an existing Court Order.

d. M.L has been prejudiced to the benefit of B.Q remaining residing in the property rent free.

2. The submission on behalf of S.Q. seeks to rely on a statutory jurisdiction to revisit the decree under the Sections 40 and 42 of the County Officers and Courts (Ireland)

Act, 1887 but does not address the position whereby the equity proceedings, and the within application to vary, were issued under the Land and Conveyancing Reform Act, 2009. Nor is the absence of an appeal relevant it is submitted in circumstances where the proceedings were compromised.

3. It is submitted that the reliance in submissions on behalf of S.Q. and B.Q on the

decision of Thwaite v Thwaite [1981] 2 FLR 280 is questionable as this decision relates to family law proceedings whereas in the within instance the Order for sale emanates from equity proceedings.

4. It is further submitted that a consideration in the case of Thwaite v Thwaite was whether there is a change in circumstances such that it would be inequitable to enforce the Order for sale. It is submitted that there no such inequitable grounds arise in this case:

a. B.Q has had the benefit of remaining in the property far beyond what was envisaged when the Consent Order for sale was made;

b. B.Q and the children, upon enforcement of the Consent Order, will receive no less than they were entitled to at the date of the Order for sale.

5. There is reliance at paragraph 40 and 41 of the submissions on behalf of B.Q on the case of Mason Hayes Curran v Marie Louise Queally [2018] IEHC 614 to support the submission that the principles in Thwaite v Thwaite apply to civil matters in this jurisdiction. The issues for consideration in that case, however, arose from separate matrimonial proceedings, and it is submitted on behalf of M.L that the reference to “the line of authority based on the decision in Thwaite” was with reference to a clause in the Terms of Settlement in those separate matrimonial proceedings and not to the issue for consideration in the civil matter. The decision in Mason Hayes Curran v Marie Louise Queally notes at paragraph 101 “In Thwaite the English Court of Appeal noted the distinction between consent orders in ordinary civil litigation and consent orders embodying financial arrangements agreed between parties to a divorce” which in fact supports the submissions made on behalf of M.L.

6. It is also submitted on behalf of M.L that the extract referred to in the decision of Abbot J. in NF v EF [2011] IR 110 para. 7 in the submissions on behalf of S.Q.

makes reference to “extreme cases” and where compliance is “impossible” which is not the case in the present case, and it is submitted that the original intent of the Order should be maintained.

7. It is also noted that the submissions on behalf of S.Q. state that the current Order for sale does not direct sale on the open market but paragraph 7 of the Consent Order of the 10th November 2022 specifically provides:

“7. The property to be put on the market for sale forthwith (precise timing to be subject to the advices of the auctioneer) subject to and with the parties to be bound by the reasonable advices of the auctioneers in relation to such sale”

8. It is submitted on behalf of M.L that what is being sought by B.Q goes beyond the manner or mode of sale and is a variation which is not permissible under Liberty to Apply or Order 43 of the Circuit Court Rules. It is further submitted on behalf of M.L that the mode and manner of sale have already been directed in the Consent Orders in the equity proceedings.

9. What is being sought by B.Q, and acknowledged in the submission on behalf of S.Q., is an application to discharge the Order for sale made on consent.

10. It is further submitted that what is being proposed is not just a refinement or modification of the Order for sale as submitted on behalf of B.Q.

11. It is submitted on behalf of B.Q that the Consent Orders in the equity proceedings do not contain a Full and Final Settlement clause. It is submitted that while this clause appears in family law proceedings it is not necessary in equity proceedings, particularly where a compromise has been reached given the finality of such a compromise and subsequent Orders being made by the Court.

12. Paragraph 26 of the submissions on behalf of B.Q refers to steps not taken in the five weeks between the Orders made and the death of R.Q. Notwithstanding that it is submitted that this is not relevant, it is of note that it was B.Q who was in the property to be sold, and no steps were taken by him to place the property on the market for sale and there were subsequent requests to do so on behalf of M.L which were not complied with by B.Q.

13. In terms of the submission on behalf of B.Q at paragraph 47 that the death of R.Q constitutes “fresh evidence” this is not accepted in circumstances where, in paragraph 9(d) of the Terms of Settlement in the family law proceedings, provision at the time of the settlement was made as to what was to occur in the event R.Q’s death.

14. At paragraph 50 and 51 of the submissions on behalf of B.Q reference is made to Delaney & McGrath and when a settlement agreement may be set aside. It is submitted on behalf of M.L that the absence of a reference to the term ‘executory consent orders’ does not exclude such orders, where found, from the law and procedure to be followed when impeaching a compromise.

15. It is submitted on behalf of B.Q at paragraph 54 that the children’s voices should be heard having regard to the Article 42A of the Constitution of Ireland. It is submitted that irrespective of the wishes of any of the parties affected, the principles governing the finality of consent orders in civil proceedings apply.

BEBHIN SPARKS BL 23rd October 2025 Word Count: 1,350

Considerations & decision:

The Court has considered the legal submissions filed on behalf of each party and the Court is satisfied that the untimely and unlawful death of Ms R.Q is a fundamental change of circumstance which the Court is obliged to consider, in the context of both Equity and Family Law proceedings. Indeed, the Court considers that it would be unjust and inequitable not to have regard to this very altered factual matrix, in circumstances where Ms R.Q was murdered (by her then partner), five weeks after entering settlement terms in both Equity and Family Law proceedings. In this case the order for sale remained executory in nature and no trust was established to receive the benefit due to Ms Q, prior to her death. Mrs L. seeks to enforce the order for sale against parties who are in essence entitled to two thirds of the beneficial interest in the property, which remains their sole residence.

The Court notes the submissions put forward on behalf of Mrs L. with regard to impeaching a compromise and the paragraphs cited from Delany and McGrath in this regard. The Court is satisfied having heard the matter and in particular, having heard the submissions on behalf of the children, that there is liberty to apply in these circumstances for variation or indeed rectification of the manner and mode by which Mrs L. receives her beneficial interest in the property. Such an offer was open to Mrs L. since 30 January 2023. The relevant principles are set out in Thwaite [1981] 3 WLR 96, which were accepted in NF v EF [2011] IR 110 and are referred to in PCR (otherwise CR) [2013] IEHC 635 and also cited in Mason Hayes & Curran v Marie Louise Queally [2018] IEHC 614. The principles set out in Thwaite allow a court to adjust an executory order if a significant change in circumstances makes it inequitable to enforce the original order. This jurisdiction applies to orders that have not yet been fully carried out. Central to this principle is that the court must ensure fairness in the changed circumstances. The court has read the case law and is satisfied that this jurisdiction applies to orders made whether in civil or family law proceedings. Family law is but a branch of civil law. The court is satisfied that there is no reasonable basis for disapplication of these principles in a broader civil context. Indeed the 2009 Act makes provision for such other orders as may be just and equitable in the circumstances of the case. In the Queally case, the court considered Thwaite in the context of the enforceability of orders made in family law proceedings and found that the family law order had priority over any subsequently registered judgment mortgage, without registration of same. In that case the plaintiff’s solicitors sought instructions to enforce the order, but no such instructions were

forthcoming. In the intervening period the solicitors for the husband registered a judgment mortgage for their fees, on the property, that was intended to benefit the wife.

In the instant case, Section 31(2)(f) of the 2009 Act provides that an application may be made to court for “such other order relating to the land as appears to the court to be just and equitable in the circumstances of the case.” It is the court’s determination that no greater step should be taken, given the fundamental change of circumstances, than is necessary to achieve fairness between the parties. In this case, Mrs L. seeks to enforce the order for sale. The court agrees that the order for sale remains in place. However, fairness requires, in light of the fundamental change of circumstances, and in light of the submissions made on behalf of the other parties (who between them hold two thirds of the beneficial interest in the property), that a proportionate, equitable and just response to the enforcement proceedings, involves Mrs L. receiving full consideration, at market rates, for her one third beneficial interest in the property on transfer of same to Mr Q, provided a deadline is in place, so as to achieve finality and certainty. In this manner the court has sought to maintain the intent, balance and symmetry of the original order in so far as possible and as such the order for sale remains in place, with variation or rectification, such that there is a stay on the order, for a period of time to facilitate transfer of Mrs L.’s interest in the property at market value. Such a variation merely affects the mode by which Mrs L. receives the benefit of her interest in the property. The court finds that the figure of €345,000 represents a fair estimate of the share due to Mrs L. for her interest in the property in the context of a transfer. There will also be savings in terms of auctioneer’s fees should the purchase of her interest proceed in this manner.

The court having considered all of the matters arising, determines as follows:

1. The dispute in relation to the equity proceedings must be dealt with first.

2. The court concludes that the intent of the parties was to ensure that Mrs. L. was in a position to extract her equity from the property.

3. In the context of Mrs. L. seeking to enforce the order for sale, the court finds that the mechanism by which this is achieved can form implied terms of the settlement agreement, such that Mrs L.’s interest, both legal and beneficial, would be transferred to Mr. Q. provided only that Mrs. L. receives full consideration as would be available to her on the open market in the sum of

€345,000 (less any taxes due by her as a consequence of the transfer,) as would happen in the open market.

4. As such the Court affirms the Order for sale in respect of the property with a stay for a period of 7 months during which time the plaintiff Mr Q. has an option to purchase the defendant’s interest in the property for the sum of €345,000 and the Court, by way of rectification, hereby makes an Order pursuant to section 31(2)(f) of the 2009 Act directing the transfer by Mrs L. of her interest in the property situate at an address in Dublin, to Mr Q. in consideration of the said payment. The Court notes that the interests of the children will be recorded, in accordance with their wishes, with less priority than the mortgage taken to finance the said transaction. The Court further directs the executors of Mrs Q.’s estate execute all such documentation as may be necessary to achieve this outcome.

5. An Order directing the County Registrar sign the said transfer or sale documentation in the event of either party failing to do so within a period of 14 days of being so requested.

6. If necessary, an Order lifting the in-camera rule so as to facilitate compliance with the said transfer order.

7. Such Orders as may follow from the above orders in the context of the family law proceedings, such that same are read so as to include the option for transfer to Mr Q, during the stay period as directed, and paragraphs 8, 9 & 10 of the said terms are hereby varied accordingly, pursuant to the provisions of the 1996 Act. Further, the Court directs a right of residence in the said property for each of the children, until such time as they are each compensated for their respective interests in the property, being a one sixth share each of the gross value of the property at the then market rates.

8. The parties might now address the court on the issue of costs.

Appearances:

Dermot Francis Sheehan BL instructed by Stafford Legal for the son/notice party.

Margaret Farrelly BL instructed by McAleer & Co Solicitors for the respondent in the family law proceedings/plaintiff in the equity proceedings.

Bebhin Sparks BL instructed by Dillon Solicitors for the defendant in the equity proceedings.