Finlay vs Finlay

This case concerned a property dispute between family members over the beneficial ownership of property and the execution of necessary documents to perfect the title.

TLDR:

• Dispute over beneficial ownership of property.
• Involves two conflicting deeds: 'unaltered' and 'altered'.
• Defendant claims error in the unaltered deed.
• Master's order to dismiss the plaintiff's claim upheld.
• Title dispute remains unresolved and requires further determination.

The plaintiffs, husband and wife, claimed beneficial ownership of property conveyed by the deceased, Nancy Millar Finlay. They argued that the deceased intended to convey not only a public house and its rear lands but also an adjacent site with the deceased's dwelling house, based on an 'unaltered deed'.

The defendant, the personal representative of the deceased, countered that the 'unaltered deed' was erroneously drafted and that the 'altered deed', which included a map delineating only the public house and its rear lands, reflected the true intentions of the deceased.

Litigation began in 2007, but progress was slow. In 2017, the defendant sought dismissal of the case due to inordinate delay by the plaintiffs. The Master issued an 'unless order' for the plaintiffs to set the action down for trial, which they failed to comply with, leading to the dismissal of their claim.

The plaintiffs applied to set aside the dismissal, arguing they were unaware of the strike-out application and that their legal representatives failed to inform them. This application was denied by the Master in 2022, and the plaintiffs appealed.

The Court of Appeal reviewed the case and found that the plaintiffs were indeed aware of the proceedings and failed to take necessary actions. The appeal to set aside the dismissal was dismissed, but the court noted that the issue of title remains unresolved and requires a merits determination.

The court emphasized that the Master’s use of the slip rule to amend the order and grant judgment in favor of the defendant was inappropriate without a full hearing on the merits. The title dispute will need to be addressed in further proceedings.

Legal representatives: Mr. McCausland (instructed by McKees Solicitors) for the Appellants, Mr. McCombe (instructed by Comerton & Hill Solicitors) for the Respondent.

Judicial Panel: Keegan LCJ

Case Citation Reference: [2023] NICA 123