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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Deignan & Ors v. Emmett & Ors [2004] IEHC 321 (15 October 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/321.html Cite as: [2005] 1 ILRM 279, [2004] IEHC 321 |
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[2004]IRLHC 321
2002 No. 7063 P
BETWEEN/
PLAINTIFFS
DEFENDANTS
Judgment of Miss Justice Carroll delivered the 15th day of October, 2004.
Erin's Isle GAA Club is a long-established Club (founded in 1917) whose original Club grounds were compulsorily acquired by Dublin Corporation in 1961. The Corporation gave the GAA Club lands at Farnham Road, Finglas, which they occupied since that year though it was some years before a formal lease was executed. This lease is dated 2nd May, 1973 and it is for 150 years from 25th June, 1961. As well as holding these leasehold lands, the trustees also hold other lands on a yearly tenancy and again other lands which are freehold.
There was a covenant in the lease not to use the premises for the sale of intoxicating liquor. This covenant was waived in 1978 which enabled the GAA Club to apply for a certificate of registration of the Club so they could sell intoxicating liquor.
When the GAA Club moved to Farnham Road one of the suggestions made was to have a pitch and putt course and tennis courts as well as pitches for the GAA Club.
The constitution which was in force at that time provided that membership of the GAA Club should be open to all who, having been accepted by the management committee, pay a yearly membership fee.
Clause 8 provided:
"The Club's Committee of Management shall have control of all Club activities, property and finance and all matters pertaining to the general conduct and welfare of the Club. Its decision in all matters pertaining to the general working of the Club shall be final."
Clause 9 provided that all property of any nature whatsoever belonging to the Club should be vested and held in the names of named trustees. The Club grounds should be vested in the names of the Club trustees together with three trustees nominated by the Dublin County Committee of the GAA.
Clause 17 provided:
"A separate sub-committee shall be formed for the promotion of Pitch and Putt. This sub-committee shall be elected annually at the AGM of Pitch and Putt members. Sub-committees may be formed for the promotion of other Sporting and Social activities as deemed necessary by the Management Committee. All officers of these sub-committees must be members of the Club. Bye-laws and rules appertaining to each sub-committee must be submitted to and ratified by the Management Committee."
The next constitution of the GAA Club (in 1973) provided in Clause 3:
"The objects of the Club shall be the promotion of games and pastimes subject to the rules of the GAA and the promotion of other approved social and cultural activities."
Clause 8 provided that the affairs of the Club should be managed and controlled by the Executive Committee and set out its composition.
Clause 10(a) provided:
"The Executive Committee shall have control of all Club activities, property and finance and all matters pertaining to the general conduct and welfare of the Club. Its decision in all matters pertaining to the general working of the Club shall be final."
Clause 12 provided that the Annual General Meeting should be held before 31st December each year to transact the following business (inter alia):
"a) to hear the Chairman's address and the reports of the Secretary, Treasurer and various sub-committees on the year's activities."
Annexed to the constitution were the terms of reference for the Fixtures Section, the Juvenile Section, the Pitch and Putt Section (referred to as Erin's Isle Pitch and Putt Club) and the tennis section (referred to as the Erin's Isle Tennis Club).
Clause 2 of the terms of reference for the Pitch and Putt Section provided:
"The objects of the Section shall be to provide and maintain facilities for its members to play pitch and putt at the Erin's Isle grounds at Farnham Drive, Finglas, according to the Rules of the Pitch and Putt Union of Ireland."
Clause 5:
"Membership of the Club shall be open to all who having been accepted as members by the Pitch and Putt Committee pay a yearly membership fee as decided at the Annual General Meeting."
Clause 6:
"Preference shall at all times be given to members of other Sections of Erin's Isle GAA Club."
Clause 7 of the terms of reference provided:
"Each candidate for admission as a member must be proposed and seconded by existing full members of two years' standing of the Section and the names and addresses of such candidates and the names of their proposers and seconders shall be displayed in a conspicuous place in the main Club Premises for at least two weeks before their election."
Clause 10 provided that the Annual General Meeting should be held in the month of October and that a management committee should be elected at the Annual General Meeting.
Clause 20 provided:
"Two delegates to the Activities Committee of the Erin's Isle GAA Club shall be elected by the Section's Committee and have a right to vote at the Activities Committee meetings."
Under the heading 'Finance' it is provided:
Clause 22:
"The bank account shall be kept at the Allied Irish Bank, Finglas."
Clause 23:
"Cheques shall be signed by the Treasurer and countersigned by one of the appointed officers of the Executive Committee."
Clause 24:
"Beginning on 1st March and continuing on the 1st of each subsequent month one third of the adult membership fees (excluding registration fees) received during that month shall be paid over to the Club's No. 1 account."
Clause 26:
"The section's accounts shall be closed for audit on 30th September in each year and the excess income shall be transferred to the Club's No. 1 account."
Clause 27:
"The Committee shall obtain the approval of Executive Committee before incurring any major capital expenditure."
The next Constitution (published in 1999) in similar terms to its predecessor provides in Clause 18:
"Separate sections other than those already constituted namely Fixtures, Juvenile, Pitch and Putt, Tennis, Social Club, may be formed for the promotion and control of other sporting, social or cultural activities as deemed necessary by the Executive Committee. The terms of reference of each section must be submitted to and ratified by the Executive Committee. Each section shall elect its committee at the Annual General Meeting of its members each year as laid down in its terms of reference."
The Rules of the Club currently in force provides that the name of the Club shall be Cumann Luath Cleas Gael agus Cluichiochta Oileann na hÉireann or Erin's Isle GAA and Sports Club.
Clause 2 states:
"The objects of the club shall be to afford members the means of social activities for amusement and recreation. The club shall be non-political and non-sectarian."
Paragraph 4 sets out those who are eligible for membership. This includes members of Erin's Isle Pitch and Putt Club.
Clause 6 provides:
"Each candidate for admission as a member must be proposed and seconded by an existing member of the Club and the names and addresses of such candidates, their proposer and seconder, shall be displayed in a conspicuous place in the Club premises for at least two weeks before their election."
Clause 13:
"New members of any particular section of the said Club shall be elected by the sub-committee of the said section and ratified by the management committee provided they comply with rule 6 of these rules."
In the 1970s the GAA Club engaged in an extensive building programme to provide main Club premises as well as changing rooms for the different sections. The Pitch and Putt section were allocated the end unit nearest to the road. Prior to that they had been given permission to erect temporary club premises. This building was subsequently destroyed by fire and the site is clear.
The GAA Club had five bank accounts. The Club was advised by the bank to reduce the number of accounts and have only one. No. 1 account would show what monies were received from the different sections. It was intended to give a float to each one which would be renewed when it was spent. When the executive committee communicated the intended revision of the terms of reference of the Pitch and Putt section in or about May, 2001, the section refused to give up its bank account. It started another account in a different bank and gave no information to the GAA Club as to its membership.
By letter dated 13th March, 2002 the Secretary of the GAA Club wrote to Mr. Jim Donoghue as Treasurer of the Pitch and Putt Section to say failure to confirm the implementation of the new terms of reference would leave the Executive Committee with no option but to suspend the officers and Committee of the Pitch and Putt Section and to make alternative arrangements for the running of the section.
The solicitors acting for the Pitch and Putt Club replied to the letter to say their clients were not agreeing to the implementation of the proposed new terms of reference. They said if any attempt was made to suspend the officers and Committee of the Pitch and Putt Club they would take steps to protect their interest including seeking a sporting lease and an injunction.
The Secretary wrote directly to Mr. Jim Donoghue inviting him to attend a meeting of the Executive Committee on 30th April, 2002. He stated that unless the revised terms of reference were adopted by the Pitch and Putt Section his current position and that of the Committee within the Section would be suspended with immediate effect. The Executive Committee would hear any submissions and a final decision would be notified in writing. He refuted the suggestion that the Pitch and Putt Section was an independent club.
Mr. Donoghue did not attend the meeting on 30th April. The solicitors acting for the Pitch and Putt Section wrote on 30th April repeating they did not want to change the rules of the Pitch and Putt Club and denying that the GAA Club had power to change them. They repeated their claim for a sporting lease.
On 8th May, 2002 the solicitors wrote to say the Pitch and Putt Club had no intention of cancelling fixtures or handing over keys.
The solicitors for the GAA Club issued proceedings on 17th May, 2002 on behalf of the plaintiffs.
The plaintiffs claim injunctions to restrain trespass on the property of the GAA Club by the defendants, their servants or agents, and to restrain any activity concerning the affairs or business of the Pitch and Putt section and to return all property and possessions belonging to the Pitch and Putt section. The plaintiffs also claim a declaration that the defendants' membership of the Pitch and Putt section has been validly terminated.
The defendants as officers of the Pitch and Putt section deny that the plaintiffs are entitled to the relief sought and by way of counterclaim claim that the Pitch and Putt section is a Club within the meaning of the Landlord and Tenant (Amendment) Act, 1971, and entitled to a sporting lease pursuant to s. 2 of the said Act.
Evidence on behalf of the plaintiffs was given by a number of witnesses. Desmond Butler, the second plaintiff, now aged 75 and a member for over 66 years, confirmed the constitutional position. The site was a green field site when they moved in. The Pitch and Putt section was seen as a good way of raising money and also for older members to retain an interest. He was the first chair of the Pitch and Putt section. The GAA paid the money for the development of the pitch and putt course. Other sections were Badminton, Chess, Darts, Ceoltóirí Éireann, Camogie, Fixtures and Executive. The Tennis section ultimately ceased to operate and folded up.
Each section had its own bank account. Cheques were signed by the treasurer of each section and countersigned by one of the officers of the executive committee. That prevailed until the Pitch and Putt section withdrew from the Club and set up its own bank account. The executive committee did not authorise the opening of this other bank account. In the last three years the GAA Club do not know the number or names of members of the Pitch and Putt section or the income derived from membership fees.
The recent terms of reference are similar to those offered to other sections. The executive committee are not seeking to disband the Pitch and Putt section. The reason this section is called the Pitch and Putt Club is that they have to be called a Club to play away-games. The section has maintained the pitch and putt grounds. One cannot become a member of the Pitch and Putt section unless approved by the Executive Committee of the GAA Club. This is still the rule.
Michael Hegarty gave evidence that he is a member of the GAA Club since 1972 and of the Pitch and Putt section since 1968. He is on the executive committee. The Pitch and Putt section of the GAA Club had a bank account at the bank in Finglas. No. 1 account was the GAA Club overall, No. 2 was the Pitch and Putt section, No. 3 Fixtures section, No. 4 Juvenile section and No. 5 Tennis section. The bank said there were too many accounts. The GAA Club arranged a number of meetings (June, 2001, February, 2002, March, 2002, and April, 2002) to discuss the matter. The representatives of the Pitch and Putt section did not turn up to the last meeting.
David Moran, who is on the executive committee for the last 14 years and the current GAA Club treasurer, confirmed that the GAA Club paid rent to Dublin Corporation, rates, ESB and central heating for the entire site including the portion used by the Pitch and Putt section. He said the Pitch and Putt Section do not pay any outgoings out of their own funds. He also referred to an application for a grant of £20,000 from the Lotto funds which was made by the Pitch and Putt section but without the knowledge of the executive committee. Subsequently the Pitch and Putt section were enabled by the GAA Club to use the Club VAT number and tax clearance certificate. The cheques were countersigned by the GAA Club treasurer. The Pitch and Putt section could not have got the grant without the VAT number and the tax clearance.
In relation to the liquor licence, this has to be renewed each year and requires a list of current members. The GAA Club have had no information about members from the Pitch and Putt section for three years. Their members are not entitled to access the Club bar unless signed in by a current member. Other ramifications for the GAA Club concern insurance.
Evidence was also given by John Costello (the sixth plaintiff) who is a member since 1970 and a trustee since 1995 and John Fagan, who is member since 1973 and on the executive committee since October 2002. John Fagan confirmed that there is no basis for the suggestion that the Pitch and Putt Section was going to be disbanded. It never came up for discussion. The GAA Club seek reconstitution of the Pitch and Putt section. It is not a club in its own right.
On behalf of the defendants, James Nolan, the third defendant, who is the secretary of the Pitch and Putt Section said his son, Paul Nolan is the current treasurer and the current secretary is Patricia McLoughlin. He claimed the Pitch and Putt section was an independent body since 1965 and was autonomous since then but it never had a constitution of its own.
Eamon Birchall who is administrator of the Pitch and Putt Council of Ireland since 1990 said the Pitch and Putt Section played in plenty of competitions. They are registered through a Club. They have to have a chair, a secretary, a treasurer and twelve other members. They must have regular use of a pitch and putt course and have to have an exclusive time each week in order to be registered. This club is affiliated and the members are registered. There must be access to a course but the council is not concerned with ownership.
Matthew Clarke was a member of the Pitch and Putt section since 1966/67. He was not a member of the GAA Club.
James Donoghue, second defendant and treasurer of the Pitch and Putt section, joined in 1968. He claimed the GAA committee said their clubhouse was in the way in 1977. They offered a new dressing room. The old clubhouse was burnt down and he said they got exclusive possession of the new premises. He gave details of expenditure on maintaining and replacing equipment. He also claimed the Pitch and Putt section is an independent, autonomous body for the last 20 to 25 years. He explained that what he meant by independent was that they operated independently. They accepted the terms of reference under which they worked. When these were changed unilaterally the amended terms were void, and the original still stood. He extracted the details of expenditure from the accounts over fifteen years. He gave details of expenditure for maintenance and machinery. The money obtained from the lotto was used to install a sprinkler system. He agreed nothing was spent on erecting or constructing permanent structures. The money was spent on items related to maintaining the grounds. In the balance sheet there was no item for capital expenditure. All the assets are owned by the GAA club.
The Landlord and Tenant (Amendment) Act, 1971 provides in s. 1 that "a sports club" has the meaning assigned to it in s. 2.
Section 2(1) provides:
"A club or organisation (in this Act referred to as a sports club) carrying on some outdoor sport, game or recreation (in this section referred to as the sport) and holding land in accordance with the conditions specified in this section shall, subject to the provisions of this Act, be entitled to obtain a lease (in this Act referred to as a sporting lease) of the land.
Sub-section 2:
The following are the conditions to be complied with:
a) that –
(i) the land is held for the purpose of carrying on the sport under a lease for a term of not less than 21 years,
(ii) the land has been continuously occupied by the sports club for that purpose for the period of not less than 21 years immediately preceding the date of the application for a sporting lease, or
(iii) the land has been continuously in the possession of the sports club for that purpose for the period of not less than 21 years immediately preceding the date of the application for a sporting lease,
b) that the sports club has spent money –
(i) on erecting permanent buildings or structures on the land which are used in connection with the land for that purpose
(ii) on reconstructing, altering, renovating or adapting any permanent buildings or structures on the land which are so used so as to render them more suitable for that purpose, or
(iii) on developing, improving or adapting the land so as to render it more suitable for that purpose and
c) that the total amount so spent was not less than the greater of the following, namely, £1,000 or fifteen times the average yearly amount of any rent or other sum paid or payable in respect of the land in the five years immediately preceding the date of the application for a sporting lease, disregarding any penal rent or other sum payable for any breach of covenant, condition or agreement and any exceptional rent or sum in respect of a specified period not exceeding five years.
Sub-section 5 provides:
Any monies spent –
(a) on the maintenance of buildings, structures or land, or
(b) … (not relevant) …
shall be disregarded for the purposes of sub-s. (2).
Section 3(5) provides:
A sports club which holds land otherwise than under a lease and which
is entitled to obtain a sporting lease may apply at any time to the landlord or other person from whom it holds the land for a sporting lease of the land and the sporting lease, where granted, shall commence on such date as may be agreed between the parties or, in default of agreement, on the date of the application."
A sports club (i.e. a club or organisation) is not defined except by reference to holding land in accordance with the conditions laid down in s. 2. These include
(sub-s. 2) holding land from a lessor under a lease for 21 years, being in occupation or possession of the land for 21 years and spending money on permanent buildings or developing and improving the land. In this case there is no rent paid or payable therefore the sum of money to be spent is not less than £1,000.
Section 3 refers to claiming a sporting lease from its immediate lessor (sub-s. 1) or where it holds otherwise than under a lease (sub-s. 5) from the landlord or other person from whom it holds the land.
The Pitch and Putt section of the GAA Club exists by virtue of the constitution of the GAA Club. It has no constitution of its own. It is subject to the control of the executive committee of the GAA Club. It is permitted to use the pitch and putt course. In particular the money collected by the Pitch and Putt Section by way of entrance fee or annual subscription is under the control of the GAA Club. The Pitch and Putt Section is permitted to retain a portion of these funds to run its affairs and to maintain the course. The GAA Club can change the terms of reference under which the Pitch and Putt Section functions at any time. The section had to report regularly to the executive committee.
In my view, a "sports club" within the meaning of the Act cannot be a section or a subcommittee of a club which controls the section/subcommittee The Pitch and Putt section is not and never has been an autonomous, independent body. The "sports Club" envisaged by the Act "holds land from a lessor or a landlord or other person
(s. 3)". In this case the GAA Club permitted a section created by its constitution to run the pitch and putt course on land belonging to and vested in its own trustees. The Pitch and Putt section did not "hold" any land from the GAA Club. The GAA Club created the pitch and putt course. The Pitch and Putt section did spend money on maintenance and buying machinery but the evidence did not substantiate that any money was spent on developing, improving or adapting the land so as to render it more suitable for the purpose of pitch and putt. Any money the Section spent was money which it was permitted to spend by the Executive Committee. The question of permanent buildings does not arise.
In my opinion the Pitch and Putt section is not a club or organisation as defined by s. 2. It does not hold land by occupation as claimed in its application for a sporting lease. It did not spend money on developing improving or adapting the land so as to render it more suitable for pitch and putt. Any money it did spend was by virtue of its terms of reference granted by the GAA club. In my opinion it is not entitled to a sporting lease.
I will make an order declaring that the Pitch and Putt Section (otherwise the Pitch and Putt Club) is not a sports club within the meaning of s. 2 of the Landlord and Tenant (Amendment) Act, 1971.
As regards the substantive relief sought by the plaintiffs, the position is that the Pitch and Putt Section rejected the authority of the GAA Club, and purported to claim that a breakaway autonomous club existed. It took over control of the monies generated by annual fees and entrance fees, which it was no entitled to do, and has failed to account for same. The membership of the section is by now completely uncertain because no new members have been ratified by the management committee of the GAA Club. When the plenary summons was served, the defendants representing the Pitch and Putt Section instead of seeking to remedy matters, opted for a head-on clash with the GAA Club. The Plaintiffs are entitled to injunctions in terms of paragraphs 1, 2 and 3 of the plenary summons. Since it may be necessary to direct accounts and enquiries I will grant liberty to apply.
Approved: Carroll J.
