Case law update -  11 July

Recent superior court cases cover company law, criminal law, financial services, immigration, planning and development, practice and procedure, public health, revenue and more.

Recent cases published on the Courts website are listed below.

Company Law

Ferris, Martin v Brightbay Real Estate Partners Limited and anor and in the matter of Redefine Australian Investments Limited (in voluntary liquidation)

27/5/2024 No. 2023/65 COS [2024] IEHC 306

Company law - Voluntary liquidation -Tax assessment - Appointment of liquidator - Creditors - Fraud - Liquidator seeking orders pursuant to s. 608 and/or s. 604 of the Companies Act 2014 - Liquidator seeks to reverse a transaction involving payment to a Cyprus-registered company - Whether transaction a fraud on the creditors - Respondents seek to strike out the liquidator's originating notice of motion as it discloses no reasonable cause of action - Whether liquidator's claim is an indirect attempt to enforce a claim by a foreign tax authority - 'Revenue rule' - Respondents application successful in part

Criminal Law

People (DPP) v Akinlade, Victor

14/3/2024 No. 146/2022 [2024] IECA 122

Criminal law - Conviction - Offences of violent disorder, assault causing harm and production of an article in the course of a dispute (baseball bat) - Appeal against conviction - Whether the trial judge should have made a decision as to whether the Garda entry into a dwelling was lawful - Whether the trial judge erred in the manner in which she dealt with an issue which arose in relation to the physical composition of a baseball bat namely whether it was made of metal or wood - Appeal against conviction dismissed

People (DPP) v D (R)

23/4/2024 No. 9/2022 [2024] IECA 124

Criminal law - Sentencing - Offences of sexual assault, rape, false imprisonment, assault causing harm, criminal damage and harassment against a child - Concurrent sentences imposed - Applicant seeking a review of the sentence imposed on the respondent on grounds of undue leniency - Grounds for review of sentence include inter alia vulnerability and age of the victim when the offending commenced - Grave breach of trust involved given that the respondent was the victim's coach - Grooming of the victim - Public humiliation - Submissions - Headline sentence - Error in principle identified - Sentence imposed quashed - Respondent re-sentenced

Financial Services

Hayes, Thomas v Promontoria (Oyster) DAC, Luke Charleton, and Andrew Dolliver

4/6/2024 No. 2018/2727 P [2024] IEHC 321

Financial services - Property - Loans and overdraft facilities - Appointment of receivers - Sale of property - Plaintiff seeking default judgment - Advisors - Plaintiff alleges fraud - Forgery - Fabrication of documents - Whether there is a procedural basis for the application - Whether plaintiff has established a prima facie case - Evidence - Plaintiff application dismissed

Immigration

D (E) and A D (Zimbabwe) v Minister for Justice and Equality

14/5/2024 No. 2023/993 JR [2024] IEHC 303

Immigration - Applicants seek to quash deportation orders - Applicants claim the reasons the orders were made are not clear and that the reasons should have been stated separately - Review of orders - Statutory time limit - Application to challenge a deportation order must be made within 28 days of notification of the decision - Delay - No reasons provided - Application refused

E (L T) and K A U v Minister for Justice - UNAPPROVED

17/5/2024 No. 2023/13 [2024] IECA 114

Immigration - Visa - Family reunification - Ethiopian national seeking to join and live with their Irish citizen spouse in Ireland - Application refused - Appellants brought judicial review proceedings in respect of the refusal - Appellants unsuccessful in the High Court - Appeal - Legal framework - Policy Document on Non-EEA Family Reunification - Constitutional rights - Gorry v Minister for Justice and Equality and A.B.M. & B.A. v Minister for Justice and Equality [2020] IESC 55 - Appeal dismissed

Planning and Development

Kimmage Dublin Residents Alliance CLG v An Board Pleanala, Ireland, and Attorney General; and 1 Terenure Land Ltd, Ben Dunne and ors (notice parties)

13/5/2024 No. 2022/987 JR [2024] IEHC 261

Planning and development - Development project - Apartment complex - Grant of permission - Challenge - Permission granted in material contravention of the Development Plan in relation to height - Justification - S. 37(2)(b)(i) Planning and Development Act 2000 as amended - S. 3 of the Planning and Development (Housing) and Residential Tenancies Act 2016, as amended - Delivery of housing - Ireland Action Plan for Housing and Homelessness - Whether the Board erred in its interpretation and application of S. 3 of the Urban Development and Building Height Guidelines 2018 in respect of public transport capacity - Whether the Board failed to give adequate reasons in rejecting the submissions made identifying an absence of public transport capacity - Order of certiorari granted quashing the Board decision to grant permission to the developer for the construction of the apartment complex

Practice and Procedure

Martin, Anthony v Irish Horse Racing Board CLG

16/5/2024 No. 2024/648 JR [2024] IEHC 305

Practice and procedure - Judicial review - Administrative law - Regulatory body - Legal representation - Race horse - Trainer - Horse won handicap race - Drug test - Horse tested positive for prohibited substance - Hearing - Regulatory body - Rules of racing breaches - Applicant fined and had licence withdrawn for six months - Appeal - Representation by barrister not registered in the jurisdiction - Whether barrister permitted to act as a barrister before the Appeals Body - S. 136 of Legal Services Regulation Act 2015, as amended - Applicant's application for leave to seek judicial review refused

Public Health

Nial Ring, Stephen Ring, and ors v Minister for Health, Ireland, and Attorney General

31/5/2024 No. 2022/1556 P [2024] IEHC 323

Public health - Covid-19 pandemic - Legislation - Restriction of movements - Prohibited gatherings -  Introduction of emergency measures - Constitutionality - "Stay at home" order - Breach - Plaintiffs attended a gathering at a public house - Plaintiffs seeking declarations that the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 which amended the Health Act 1947 and regulations introduced thereafter were unconstitutional - Service of summons - Plaintiffs allege they were charged with a law which did not exist or which was unconstitutional at the time that the alleged offences took place in April 2020 - High Court upheld the legislation and regulations as constitutional

Revenue

Hanrahan, Dermot v Revenue Commissioners - UNAPPROVED

15/5/2024 No. 2022/73 [2024] IECA 113

Revenue - Case stated - Questions of law - Tax law - Tax avoidance - S. 811 of the Taxes Consolidation Act 1997 - Interpretation - Financial transactions - Capital gains tax relief - Transactions deemed to be for a tax avoidance transaction will increase the amount of CGT that the taxpayer must pay - Time limit for pursuing taxpayer for the purported tax avoidance - Questions answered

 

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