High Court refuses dismissal of property co-ownership claim due to significant factual dispute over transfer agreement.

THE HIGH COURT

[Record No. 2024/2777 HP]

[2026] IEHC 483

BETWEEN

PATRICK MARTIN

PLAINTIFF

AND

NOEL MARTIN, NERA INVESTMENTS LIMITED AND THE MINISTER FOR

CHILDREN, EQUALITY, DISABILITY, INTEGRATION AND YOUTH

DEFENDANTS

JUDGMENT of Ms Justice Bolger dated the 14th day of July2026

1. This is the first named defendant's application to dismiss the proceedings as disclosing no reasonable cause of action, amounting to an abuse of process, bound to fail and/or no reasonable chance of success. The plaintiff's substantive claim relates to what he says is his 50% interest in a commercial property, which the first named defendant says was transferred to him by agreement. For the reasons set out below, I am refusing this application.

The plaintiff’s claim

2. The plaintiff issued a plenary summons on 29 May 2024 and filed a statement of claim on 9 August 2024. His claim is relatively simple. He pleads that he and the first named defendant are the full owners as tenants in common of the East End Hotel, Main Street, Portarlington in County Laois (hereinafter referred to as "the property")

and that he and the first named defendant each own 50% of the property. He asserts that he has been wrongly excluded from the property and that the second named defendant claims an entitlement to possession and/or occupation on foot of an agreement with the first named defendant, and the third named defendant claims an entitlement to possession to of and/or occupation of the property on foot of an agreement with the second named defendant. The plaintiff seeks a declaration that he and the first named defendant are full owners as tenants in common of the property. In the course of this application, he submitted that this is not an equitable remedy but simply reflects the current situation as per the Register of Leaseholders for the County of Laois. He seeks three separate injunctive reliefs, three separate heads of damages, a statutory partition order and a statutory order for sale and distribution of the proceeds between him and the first named defendant.

3. The first mention of the distribution of partnership assets including the property, is made in the first named defendant's defence filed on 17 July 2025. The first named defendant pleads that he is the sole owner of the property pursuant to an agreement of dissolution of the partnership between him and the plaintiff. The remainder of his defence is essentially a traverse of the plaintiff’s pleas.

4. Both the plaintiff and the first named defendant have sworn detailed and lengthy affidavits in this application, three by the plaintiff and four by the first named defendant. There is also a short affidavit by Paul Martin, a brother of the first named defendant who had some dealings with the parties in relation to their property business. The fact that the affidavits and exhibits run to over 1,000 pages gives a flavour of the extent of the factual and legal disputes that exist between the parties.

Background

5. While much is in dispute between the parties, what is agreed is that the plaintiff and the first named defendant were in partnership together in a property business over a number of years that prospered until the property crash of 2008. By 2021, they had decided to dissolve the partnership and split the assets between them. It is agreed that the partnership was dissolved but the plaintiff disputes that the agreement to divide the property ever advanced beyond various draft agreements that were never executed. The plaintiff says he took certain steps, including in relation to the property, in the expectation that the assets would be divided as had been discussed in negotiations. However, he contends that in the absence of a final agreement, he remains a co-tenant of the property.

6. A letter from the charge holder for many of the partnership properties was exhibited, confirming that the property was vested solely in the first named defendant as agreed between the parties.

7. A point of contention between the parties is whether there was a binding agreement to transfer the plaintiff's interest in the property to the first named defendant. The first named defendant does not dispute the absence of an executed agreement, although he exhibits in his grounding affidavit what he calls a copy of the "final dissolution agreement" sent by email on 26 June 2021. The email he exhibits from the plaintiff's then lawyer states that the author is attaching "a draft Deed of Partition for the properties held by Pat and Noel". The first named defendant exhibits a number of subsequent draft dissolution agreements and correspondence from June, July and August 2023, which differ from what the plaintiff avers was the final dissolution agreement. None of those agreements were ever signed. There are a number of letters from both parties’ solicitors referring to them as, inter alia, a proposed exchange of property (for example, a letter from a former solicitor to one of the parties of 8 June 2023).

8. The first named defendant says that the later version of the dissolution agreements exhibited relates to a different agreement whereby the plaintiff agreed to transfer a different property to him. The first named defendant makes no reference to the consideration, if any, that he was to provide to the plaintiff for that alleged transfer.

9. The first named defendant avers that the plaintiff acted on the terms of the dissolution agreement including by transferring the rent on another property that was to be transferred to the plaintiff, to the plaintiff's own bank account.

10. As well as relying on the absence of an executed agreement between the parties, the first named defendant relies heavily on statements made in writing by the plaintiff to Revenue and NAMA to the effect that the property was to be retained solely by the first named defendant. Among the written statements to that effect made by the plaintiff is a statutory declaration sworn by the plaintiff on 23 December 2024 for NAMA. In the notes to the plaintiff’s sworn statement, he stated in relation to, inter alia, the property, that there were:- “…a number of properties that formed part of the now defunct Pat and Noel Martin partnership that are to be transferred to Noel Martin under the Deed of Partition (which I have previously supplied to NAMA). The completion of this partition agreement has proved to be very troublesome due to the difficulties in communications between myself and Noel Martin. As such I intend to commence legal proceedings to ensure the windup of the partnership takes place.”

11. The plaintiff contends that he always kept NAMA appraised of the status of the distribution of the assets. In relation to his sworn statement to Revenue, he says he made those statements on the belief that the negotiated split of the assets would take place.

The first named defendant's case

12. The first named defendant says that the conclusive and final nature of the agreement has been confirmed by the evidence. The legal consequences of the plaintiff’s statements to Revenue and NAMA that appear to be inconsistent with the claims he makes in the within proceedings, is in effect an assertion that the plaintiff is seeking equitable relief with unclean hands. The first named defendant's case is set out at para. 22 of his written submissions as follows; “The Court, in assessing the nature of the within proceedings, and whether they constitute an abuse of process and ought to be dismissed on that basis, is entitled to take account-by analogyof the principle of ex turpi cause non oritur action, which operates to prevent a litigant from obtaining a benefit for himself as a result of his unlawful act.”

13. The first named defendant cites the decision of the Supreme Court in Quinn v IBRC [2016] 1 IR 1 where the Supreme Court stated “A party should not, in accordance with [the principle of ex turpi causa non oritur actio] be entitled to come to court and seek to enforce a transaction which is tainted with illegality in some form". The court went on to say, in reliance on the minority judgment of Lord Goff in the House of Lords decision in Tinsley v Milligan [1994] 1 AC 340, that:- "…Once it is determined the policy requires that contracts which are deemed unlawful by reference to a particular statutory provision are to be regarded as unenforceable, no assessment of the merits of the individual case arises."

14. The first named defendant argues on the basis of that case law that the commission of a wrongful and, in particular, an illegal act will operate to bar a litigant from obtaining any benefit or damages associated with that wrong.

The plaintiff's case

15. The plaintiff disputes the existence of any binding agreement and relies on what he says were the changing versions of the draft agreement throughout 2023, well after the first named defendant avers to having reached a final agreement on the division of the partnership assets as far back as 2021. The plaintiff excuses his statements to Revenue and NAMA as based on a mistaken belief and, in any event, contends, as a matter of law, that this cannot lead to a dismissal of his proceedings at this early stage before discovery and direct and cross-examination at trial. He relies on the first named defendant's demand for a waiver from the plaintiff in June 2023, which the plaintiff refused to provide, as the reason why the first named defendant declined to execute the agreement, though the first named defendant contends that that related to a separate aspect of the property dealings between them, as referred to at paragraph 8 above.

The law

16. The court's jurisdiction pursuant to O. 19, r. 28 is well-established and not in dispute here. The following propositions were set out by the plaintiff at para. 2.11 of his written submissions and accepted by counsel for the first named defendant: “Accordingly, the principles to be applied by the Court in the context of these proceedings are, inter alia, as follows:

1. The burden of proof is on the First Named Defendant. (McAndrew v Salthill)

2. The jurisdiction to dismiss should be exercised sparingly. (Salthill)

3. The Court can only engage in a very limited review of the evidence and merits. (O’Malley and Keohane)

4. Disputed oral evidence cannot be relied upon by the First Named Defendant. (Keohane)

5. Conflicts of fact must be resolved in favour of the plaintiff. (Kennedy)

6. The Plaintiff does not even need to establish a prima facie case, simply a stateable case. (McAndrew) (Salthill)

7. Where evidence is submitted by the Plaintiff which, if accepted at trial, might arguably lead to the Plaintiff succeeding, then that is an end of the matter. (Keohane)

8. All that the Plaintiff needs to do is to put forward a credible basis for suggesting that it may, at trial, be possible to establish the necessary facts to succeed. (Keohane)

9. The Court must be confident that no matter what may arise on discovery or at the trial of the action the proceedings will fail. (Supermacs)” However, there is disagreement between the parties as to the legal consequences of the plaintiff’s statements to Revenue and NAMA which the defendant says were untrue.

17. The affidavit evidence before this Court on this application to dismiss is extensive, with allegations, counter-allegations and contrary versions of events. That alone renders it difficult to see how the first named defendant can establish such a clear case that the plaintiff cannot establish even a stateable case that he may succeed at trial, particularly given the court's obligation to take the facts the plaintiff pleads at their highest, including what the plaintiff says is the conclusive nature of the Register, combined with the documentary evidence referring to various versions of draft agreements on the distribution of the partnership assets.

18. However, the plaintiff made statements (including by way of statutory declaration) to two separate state bodies, Revenue and NAMA, from which the defendant says serious legal consequences flow. The case law cited to this Court, particularly Quinn v IBRC, established that a court cannot and will not enforce an illegal contract. Here, the basis for the plaintiff's substantive claim in his proceedings is that he is currently registered as a tenant in common on the Register. No illegality is claimed in relation to that. What is at issue in the first named defendant’s within application is different, i.e. he says the plaintiff's actions have tainted his position such that he is not entitled to secure a benefit from his wrongdoing by way of obtaining equitable relief from this Court.

19. In effect, the first named defendant contends that the plaintiff comes to equity with unclean hands, thereby denying the plaintiff the equitable relief that he seeks. The first named defendant relies on the decision of McDonald J in Strategic Land Investments Ltd v Kenny Galway Ltd [2025] IECA 65, where the court was critical of the plaintiff's failure to offer any explanation for not advising the court of highly relevant developments and the court therefore refused the interlocutory injunction that had been sought. I distinguish that decision because (1) an explanation has been provided by this plaintiff; and (2) this is a far more significant application to dismiss the entire proceedings, than an interlocutory application for injunctive relief pending trial.

20. Even if there is a good basis to dismiss the plaintiff's equitable relief in the within application, his claim for damages would remain as would his statutory claims for partition and an order for sale and the current fact that he is identified on the Register of Deeds as a co-owner of the property. There is an even more pressing reason why the plaintiff's allegedly unclean hands are not sufficient to permit this Court to dismiss either his entire proceedings, or more narrowly, his claim for equitable relief, relating to his rights to fair procedures. In English v O'Driscoll [2019] IECA 153, Peart J was considering an appeal from an order of the High Court dismissing the plaintiff's claim following trial. The plaintiff brought negligence proceedings and, at para. 13, Peart J distinguished this from "proceedings in which the plaintiff was seeking to have enforced against the defendant's obligations on foot of a contract which is found to have a fraudulent or other illegal component or purpose – see for example Quinn v IBRC…". Peart J went on to raise the issue of fair procedures, where there had been no evidence given to the High Court to establish that the plaintiff was party to a fraud nor was it put to the plaintiff in cross-examination, thereby denying him the opportunity to respond to those serious allegations. At para. 18, Peart J referred to the need to reach conclusions in relation to fraud "based on the evidence given, or inferences properly drawn from such evidence given at trial" (my emphasis). He concluded that there was a want of fair procedures on how the trial had been conducted.

21. Here, the allegations against the plaintiff are set out on affidavit. That is not evidence given or conclusions drawn from evidence given at trial, where the plaintiff will be permitted to address the allegations in his evidence, the evidence of any other witnesses he may call and by cross-examination of the first named defendant and/or the first named defendant’s witnesses. The plaintiff will also have the benefit of discovery, which is a relevant matter here as the plaintiff says he is missing a number of documents as a result of a theft from his office (a fact independently corroborated by another person's affidavit), and he believes that the first named defendant may have copies of the documents which he intends to seek by way of discovery.

22. A further fair procedure point arises in the context of the first named defendant's unclean hands argument, from the recent decision of the Court of Appeal in O’Longain v Burke [2025] IECA 148 to the effect that unclean hands might not deprive a plaintiff of equitable relief, where a fundamental unfairness has occurred. In the High Court, Dignam J refused the equitable relief sought because of the plaintiff's established contempt of court. However, the Court of Appeal overturned that decision and the plaintiff was granted injunctive relief in relation to the objective bias of a disciplinary panel due to consider an appeal from the termination of his employment. Faherty J stated, at para. 223; “Accordingly, whilst I consider the appellant’s contempt no less egregious now than it was when he was before Dignam J. in the 2022/4507P proceedings, as I have said the distinguishing feature of the present case is the spectre of unfairness that will hover over the appeal process before the DAP if the appellant has to face that body as presently constituted given that he has made out a case of a reasonable apprehension of objective bias.”

23. The plaintiff's conduct in Burke was described by Faherty J as "egregious" but nevertheless, his contempt of court was not sufficient to deny the plaintiff equitable relief in the context of his rights to fair procedures viz-a-viz an appeal from the termination of his employment. The approach of Faherty J applies equally to the lack of candour claimed by the first named defendant about the plaintiff’s pre-litigation conduct. That conduct does not deny the plaintiff the right to pursue his litigation to trial.

Conclusions

24. The evidence before this Court in this application to dismiss the proceedings against the first named defendant has satisfied me that there is significant disagreement between the parties on the existence of a binding agreement to transfer the plaintiff's interest in the property to the first named defendant. The steps taken by the plaintiff in reliance on the outcome of the negotiations and before the execution of any agreement and the plaintiff’s statements to Revenue and NAMA, are insufficient to permit the proceedings to be dismissed at this stage. I therefore refuse the first named defendant's application to dismiss the proceedings against him.

Indicative view on costs

25. My indicative view on costs is that the plaintiff, having succeeded in defending the first named defendant's application to dismiss the proceedings at this stage, and in accordance with s. 157 of the Legal Services Regulation Act 2015, is entitled to the costs of this application to be adjudicated upon in default of agreement but that a stay should be put on the execution of those costs pending the outcome of the proceedings. I will put the matter in before me at 10.00 a.m. on 29 July 2026 for such further submissions as the parties may wish to make in relation to costs and for such final orders as may need to be made at this stage.

Counsel for the plaintiff: Neal Flynn BL

Counsel for the first named defendant: Bernard Dunleavy SC, Sean O’Sullivan BL