Simon Deignan, Desmond Butler, Eamon Ó Tomain, Liam Ó Maolbhichil, Micheál Ó Dubhlaine and Seán Mac Coisdealbha (plaintiffs) v Thomas Emmett, James Donoghue and James Nolan (defendants)
Landlord and Tenant - Application for injunction - Application for declaration that membership of a pitch and putt section validly terminated - Counterclaim that pitch and putt section is a club - The meaning of "sports club" - Whether an entitlement to a sporting lease - Landlord and Tenant (Amendment) Act, 1971, ss. 1, 2 and 3.
The High Court (before Miss Justice Carroll); judgment delivered October 14th, 2004.
A "sports club" cannot be a section or a subcommittee of a club which controls the section/subcommittee. A "sports club" is not defined except by reference to holding land in accordance with the conditions laid down in section 2 of the 1971 Act. These include 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.
The High Court (Miss Justice Carroll) so held in declaring that the pitch and putt section of Erin's Isle GAA is not a sports club within the meaning of section 2 of the Landlord and Tenant (Amendment) Act 1971 and granting the plaintiffs' application for injunctions.
Mr Aedan McGovern, SC with Mr Micheál Ó Scanaill, BL for the plaintiffs; Mr Paul Walsh, SC with Mr Bernard McCabe, BL for the defendants.
Miss Justice Carroll commenced her judgment by outlining the factual background.
Erin's Isle GAA Club was founded in 1917. In 1961 the club's original grounds were compulsorily acquired by Dublin Corporation and they were given lands at Farnham Road, Finglas, which they occupied since then, though the lease is dated May 2nd, 1973 and is for 150 years from June 25 th 1961. The trustees also hold other lands on a yearly tenancy and lands that are freehold. The lease contained a covenant not to use the premises for the sale of intoxicating liquor, but the covenant was waived in 1978 allowing the 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 , it was suggested that there should be a pitch and putt course and tennis courts, as well as pitches for the GAA club.
The constitution then in force 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. Miss Justice Carroll then recited the relevant clauses.
Clause 8 provided that the club's committee of management would have control of all club activities, property and finance, and all matters pertaining to the general conduct and welfare of the club with its decision in all matters pertaining to the working of the club to be final.
Clause 9 provided that all property belonging to the club would be vested and held in the names of named trustees; the club grounds would be vested and held in the names of the club trustees, together with three trustees nominated by the Dublin County Committee of the GAA.
Clause 17 provided for a separate sub-committee to be formed for the promotion of pitch and putt. This sub-committee was to be elected annually at the AGM of pitch and putt members.
This clause also provided that sub-committees be formed for the promotion of other sporting and social activities as deemed necessary by the Management Committee. All officers of these sub-committees had to be members of the club, and bye-laws and rules appertaining to each sub-committee had to be submitted to and ratified by the management committee"
The next constitution of the GAA club, was in 1973. Miss Justice Carroll referred to Clause 10(a) which provided that the executive committee was to have control of all club activities, property and finance, and all matters pertaining to the general conduct and welfare of the club and that its decision in all matters pertaining to the general working of the club were to be final .
Clause 12 referred to the AGM which would hear the chairman's address, reports of the secretary, treasurer and various sub-committees on the year's activities.
The terms of reference for the various sections, including the Pitch and Putt Section (Erin's Isle Pitch and Putt Club) and the Tennis Section were annexed to the constitution. Miss Justice Carroll stated that the next Constitution published in 1999 was in similar terms to its predecessor.
In the 1970s the GAA club engaged in an extensive building programme to provide main club premises, and changing rooms for the different sections. The pitch and putt section was allocated the end unit. Prior to that they had been given permission to erect temporary club premises. That building was subsequently destroyed by fire.
The GAA club had five bank accounts, but was advised by the bank to reduce same to 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 spent. When the executive committee communicated the intended revision of the terms of reference, in or about May, 2001 the pitch and putt 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 March 13th, 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 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 pitch and putt club replied, through their solicitors, that they were not agreeing to the implementation of the proposed new terms of reference, and that they would seek a sporting lease and an injunction if any attempt was made to suspend the officers and committee.
The secretary wrote to Mr Jim Donoghue inviting him to attend a meeting of the executive committee on April 30th, 2002 and stated that, unless the revised terms 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 section was an independent club.
Mr Donoghue did not attend the meeting. Solicitors acting for the pitch and putt section wrote on April 30th repeating that they did not want to change the rule of the Pitch and Putt club, denying the GAA club had power to do so and repeating their claim for a sporting lease. They wrote again on May 8th, 2002 to the effect that the pitch and putt club had no intention of cancelling fixtures or handing over fees.
The solicitors for the GAA club issued proceedings on May 17th, 2002 claiming 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 sought a declaration that the defendants' membership of the pitch and putt section had 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 and entitled to a sporting lease pursuant to the 1971 Act.
Miss Justice Carroll then went through the evidence given. The evidence on behalf of the plaintiffs was that the site was a greenfield site when they moved in and the GAA paid the money for the development of the pitch and putt course. There were various other sections, ranging from badminton to tennis, and each section hadits own bank account.
Cheques were signed by the treasurer of the section and countersigned by an officer of the executive committee, and that pertained until the section withdrew from the club and set up its own account. The reason the section is called the pitch and putt club is that they had to be called a club to play away games. One could not become a member of the pitch and putt section unless one was approved by the executive committee of the GAA club.
The 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. Reference was also made to an application made by the pitch and putt section to the Lotto for a grant, and that they could not have gotten it without the GAA Club VAT number and tax clearance certificate.
As regards the liquor licence, it had to be renewed yearly and required a list of current members, but the GAA had no information about members of the pitch and putt section for three years, thus their members were not entitled to access the bar unless signed in.
She then looked at the evidence on behalf of the defendants, which was that the section was an independent body since 1965, but never had a constitution of its own.
The club is affiliated to the Pitch and Putt Council of Ireland and the members are registered. Though there must be access to a course the council is not concerned with ownership. A member of the pitch and putt club since 1966/67 was not a member of the GAA club.
Details were given of maintaining and replacing equipment and exclusive possession of the new premises. In the balance sheet there was no item of capital expenditure.
Referring to the Act, Miss Justice Carroll stated that a sports club is not defined except by reference to holding land in accordance with the conditions laid down in section 2. These include (sub-section 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.
Miss Justice Carroll stated that in this case there was no rent paid, or payable, therefore the sum of money to be spent is not less than €1,000. She said that section 3 refers to claiming a sporting lease from an immediate lessor (sub-section 1), or where it holds otherwise than under a lease (sub-section 5) from the landlord or other person from whom it holds the land.
Miss Justice Carroll said that the pitch and putt section of the GAA club existed by virtue of the constitution of the GAA club. It had no constitution of its own. It was subject to the control of the executive committee of the GAA Club. It was permitted to use the pitch and putt course. The money it collected by way of entrance fee or annual subscription is under the control of the GAA club, the pitch and putt section being 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, and the section had to report regularly to the executive committee.
In Miss Justice Carroll's 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 (section 3)". Miss Justice Carroll went on to state that 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. Miss Justice Carroll said that 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 that it was permitted to spend by the Executive Committee. The question of permanent buildings does not arise.
Thus the pitch and putt section is not a club or organisation as defined by section 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. Miss Justice Carroll stated that any money it did spend was by virtue of its terms of reference granted by the GAA club. In her opinion, it was not entitled to a sporting lease. She made an order declaring that the pitch and putt section (otherwise the Pitch and Putt club) is not a sports club within the meaning of section 2 of the Landlord and Tenant (Amendment) Act, 1971.
As regards the substantive relief sought by the plaintiff, Miss Justice Carroll stated that 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, she said, it was not entitled to do, and had failed to account for same.
The membership of the section is now completely uncertain because no new members have been ratified by the management committee of the GAA club.
Miss Justice Carroll then referred to the fact that when the plenary summons was served the defendants, instead of seeking to remedy matters, opted for a head on clash with the GAA club.
She held that the plaintiffs were entitled to injunctions in terms as sought.
Solicitors: Cathal N. Young O'Reilly and Company ( Dublin ) for the plaintiffs;
John Shiel and Company ( Dublin ) for the defendants.
Joan Kelly, Barrister .