IEHC 475 — IEHC 475 — High Court

APPROVED

REDACTED

FOR PUBLICATION

THE HIGH COURT

FAMILY LAW

CIRCUIT APPEAL

DUBLIN CIRCUIT COUNTY OF THE CITY OF DUBLIN

IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT, 1989 AND IN THE MATTER OF THE FAMILY LAW ACT, 1995

[2026] IEHC 475

Record No. H.CAF 2025 35

BETWEEN/

G.H

Respondent/Applicant

AND

I.J

Appellant/Respondent

Judgment of Ms. Justice Nuala Jackson delivered 3rd July 2026.

BACKGROUND 1. This is an appeal by the Respondent, I.J, from the whole of the order of the Circuit Family Court of the 27th March 2025. The Circuit Family Court re-entered the proceedings and refused the relief sought in the Notice of Motion which concerns enforcement of a compromise of proceedings achieved between the parties. 2. An application was made by Motion in the appeal for liberty, pursuant to section 37(2) of the Courts of Justice Act, 1936, to adduce oral evidence in support of the appeal. This application came before this Court (Jordan J.) in June 2025 and liberty was granted to the Appellant to adduce evidence from two professionals (Junior Counsel and Accountant) who acted for her at the time of the settlement in the Circuit Family Court. The Order further provided that the said evidence was to be adduced by the Appellant filing and serving Affidavits sworn by both of the said Professional witnesses within 14 days of that Order. The Order of June 2025 further granted the Respondent special leave with respect to such additional witnesses that he may nominate, such evidence also to be adduced by way of Affidavit(s), to be sworn within a period of 14 days. This Court further directed that all deponents attend for cross examination at the hearing of the substantive Appeal. It is especially noted in the Order of this Court that the Appellant and the Respondent to the appeal, “is entitled to and has reserved his position with respect to the admissibility of and the relevance of and the weight to be attached to such evidence.”

THE SUBSTANTIVE APPEAL

3. The motion seeks the attachment and, if necessary, committal of the Respondent for failure to comply with the Order of the Circuit Family Court made on consent on the 25th May 2022 and, in particular, paragraphs 7, 8, 11 and 12 of this Order. It further seeks judgment in the sum of €35,131.69 (a claim in the motion in respect of voluntary school contributions in the sum of €2,300 was not proceeded with at the hearing of this appeal). 4. The matter came before the Circuit Family Court on the 25th May 2022 (before HHJ Michael Walsh) in the context of Judicial Separation proceedings. The Order made on that date indicates that the proceedings were compromised as between the parties and consent terms (headed ‘Consent Orders’) were filed. These consent terms were attached to the Order and scheduled thereto and the Court made them a Rule of Court. A Decree of Divorce was granted on the same day, the same terms being proper provision for the purposes of section 5 of the Family Law (Divorce) Act, 1996. 5. These Consent Orders deal with the usual range of matters which arise by way of ancillary reliefs in matrimonial proceedings. I will reference the particular paragraphs in respect of which breach is alleged as these are the only ones relevant to these proceedings.1 6. Paragraph 7: this provides for the solicitors for the parties to have joint carriage of sale of two properties (with the Applicant to be the lead solicitor), the sales of which are ordered in Paragraphs 3 and 6 (there is misnumbering of the paragraphs. Paragraph 6 would appear to be the fourth paragraph). One of these properties is situate in Wexford and the other in Dublin. 7. Paragraph 8: this provides that on the sale of the properties referenced at 3 and 4, “the entirety of the net proceeds of sale shall be used to pay down the mortgage on the family home immediately upon receipt.” (underlining added) 8. Paragraph 11: this provides that “The Applicant shall pay to the Respondent a lump sum of €300,000 on or about 25 May 2025. The lump sum shall be made up of (a) the proceeds of sale of the premises at [PROPERTY 1] (b) the proceeds of sale of [PROPERTY 2] and (c) the balance paid by the Applicant.” 9. Paragraph 12: this provides that, “the Applicant shall be solely responsible for the discharge of the school fees and the college registration fees during the dependency of the children.” 10. This last provision relates to the portion of the motion which I was informed was not being proceeded with before me. 11. The intended course of action, as provided for in the Consent Orders, therefore seems straight forward. The mortgage on the family home was to be reduced by the entirety of the net proceeds of sale of two identified properties and, separately, a lump sum of €300,000 was to be paid by the Respondent to the Applicant, with the net proceeds aforementioned being applied in discharge (or part discharge) of such lump sum. If a balancing figure arose, this was to be paid by the Respondent.

1 There is some little confusion arising based upon the misnumbering of the terms of compromise but I do not believe that anything turns on this. The dispute between the parties is amply clear. 12. Paragraph 8 refers to the “net proceeds of sale” without defining what this means and Paragraph 11 refers to “the proceeds of sale” (there is no reference to the word “net” and, again, “proceeds of sale” is not defined). 13. It should further be noted that the compromise terms provide that the family home is to be transferred to the Respondent. The property was subject to mortgage and it was agreed that, “the Respondent shall be solely responsible for the mortgage on the family home and all costs and expenses relating to the family home and shall keep the Applicant fully indemnified in respect of same.” 14. Importantly, paragraph 9 of the compromise terms provides that the Appellant is to endeavour to transfer the mortgage on the family home into her sole name by a stated date and: “In the event that she is unable to do so, an order pursuant to section 10(1)9(a)(ii) of the 1995 Act directing the sale of the family home and on discharge of the mortgage and costs of sale, the [Appellant] shall be entitled to the entire of the net proceeds of sale.” 15. It is therefore clear that the preservation of the family home is dependent upon the Appellant being able to have the Respondent relieved of liability for the mortgage on it within a relatively short timeframe. The expressly stated aim of mortgage reduction through the application of funds realised from the sale of other assets is perfectly understandable in this context.

SUBMISSIONS

16. Detailed written and oral submissions were on behalf of both parties. I have considered these. The Respondent submits that my focus must be on paragraph 11 and whether this obliged the Respondent to discharge capital gains tax liability. He contends that it does not. It is contended that the Respondent was obliged to pay €300,000 only and he did so through the payment of the whole of the net proceeds of sale from Property 1 together with sufficient from the proceeds of sale of Property 2 to bring the total sum paid to €300,000. 17. The authorities relating to the proper interpretation of contracts are detailed. The objective nature of this exercise is referenced (Danske Bank A/S v. Hegarty [2012] IESC 30 (Clarke J.) and Brushfield v. Arachas Corporate Brokers [2021] IEHC 263 (McDonald J.)). I was referred to the “text in context” approach emphasised by Clarke J. in Jackie Greene Construction Ltd. v. INBS [2019] IESC 2. It was stressed that interpretation must be in accordance with the natural and ordinary meaning of words. Importantly, I was referred to the dictum of Fennelly J. in Marlan Homes Ltd v. Walsh & Wedick [2012] IESC 23 that when interpreting words, they must be given:

“their ordinary and natural meaning, in a sense as would be understood by a reasonable person having an interest in or knowledge of the material circumstances.”

18. The dictum of McKechnie J. in the same case was urged as pertinent. This is a very clear exposition of the principle to be applied:

“It is important however to note that where the parties have committed their responsibilities to written form, in a particular manner, it must be assumed that they have intended to give effect to their obligations in that way. Such must be recognised as their right, both commercially and under contract law. Accordingly it is important that, when face with a construction issue, a court should focus its mind on the language adopted by the parties being that which they have chosen to best reflect their intentions. It is not for the court, either by means of given business or commercial efficacy or otherwise, to import into such arrangement a meaning, that might also be available from an understanding of the more general context in which the document came to exist, but is one not deducible by the use of the interpretive rules as mentioned.”

19. Uncontroversially, the Respondent submits that it is not for the court to substitute its own bargain for that of the parties. The Respondent proceeds to apply these principles to paragraph 11 of the compromise agreement and the absence of any reference to the payment of revenue liabilities arising. 20. Insofar as there has been fresh evidence admitted pursuant to the Order of this Court, the Respondent submits that this traverses into the realm of subjective interpretation which is not in accordance with the authorities concerning contractual interpretation. 21. There is little deviation between the submissions of the parties as regards the principles of contractual interpretation. The Appellant references Brushfield v. Arachas Corporate Brokers also and Arnold v. Britton [2015] UKSC 36, as well as the decision of Hyland J. in G. v. G. [2024] IEHC 489 (G. v G.). The difference between them seems to relate to the extent to which I should have regard to the relevant context, factual and legal, at the time the agreement was reached and facts and circumstances known or assumed by the parties at the time that the document was executed. The Appellant asserts that the D v D2 Schedule is such a relevant fact or circumstance. The Respondent asserts that the fresh evidence is trespassing into the area of subjective intention.

LEGAL PRINCIPLES APPLICABLE

22. The Terms of Settlement agreed between the parties were proffered to the Circuit Family Court as constituting proper provision for the family both in the context of judicial separation proceedings and in the context of divorce proceedings 3. In such circumstances, the Decree being sought cannot be granted by the Court absent the ancillary reliefs constituting proper provision. Such Decrees were granted in this instance. In this context, these terms are not entirely equivalent to a simple contract. However, in endeavouring to interpret these terms, it seems to me that the normal contractual rules apply. That this is so, is supported by the judgment of this Court (Hyland J.) in G. v G., which considered the legal principles applicable to the interpretation of terms of compromise achieved as between two spouses in the context of divorce proceedings, which terms were subsequently proffered to the Court and ruled in such proceedings. The applicable interpretative principles are stated to be: (a) The principles of interpretation applicable to settlement agreements are the same as those applicable to any contract4; (b) The approach of the court must be to decide the intention of the parties having regard to the language used in the contract and the surrounding circumstances; (c) The “text in context” approach requires a court to consider the text used in the context of the circumstances in which the document concerned was produced, including the nature of the document itself;

2 2015 IESC 16 3 There were dependent children in the family and therefore the provisions of section 3 of the Judicial Separation and Family Law Reform Act, 1989 applied. 4 Jackie Green Construction Limited v. IBRC [2019] IESC 2. (d) The formality of the contractual document and the involvement of lawyers in the drafting of it support a diminished likelihood of error or loose language; (e) Hyland J. cited with approval the decision of O’Donnell J. in Law Society of Ireland v MIBI [2017] IESC 31 – “… the meaning of the relevant provision of any agreement is to be determined from a consideration of the agreement as a whole, whose interpretation not only relies on those features supportive of the interpretation but also must plausible interpret the entire agreement and in particular those provisions which appear to point to a contrary conclusion. The court must consider not just the words used but also the specific context, the broader context, the background law, any prior agreements, the other terms of the agreement, other provisions drafted at the same time and forming part of the same transaction and what might be described as the logic commercial or otherwise of the agreement.” I have found this dictum to be of particular value in the context of this case. (f) The interpretative process is objective,5 subjective intentions or understandings are excluded; (g) The interpretative test is what would the written contractual terms convey, “to a reasonable person having all the background knowledge which would have reasonably been available to the parties at the time of conclusion of the contract”. In applying this test, a court must have regard to the words used and also the relevant context (factual and legal) at the time the contract was put in place; (h) Negotiations are not admissible and subjective intention is excluded but context includes, “any objective background facts or provisions of law which would affect the way in which the language of the document would have been understood by a reasonable person.” 23. As stated by McDonald J. in Brushfield:6

“110. The following principles emerge from those authorities:-

5 Brushfield v. Arachas Corporate Brokers [2021] IEHC 263 (McDonald J.) 6 Ref. fn 5 above. (a) The process of interpretation of a written contract is entirely objective. For that reason, the law excludes from consideration the previous negotiations of the parties and their subjective intention or understanding of the terms agreed;

(b) Instead, the court is required to interpret the written contract by reference to the meaning which the contract would convey to a reasonable person having all the background knowledge which would have been reasonably available to the parties at the time of conclusion of the contract;

(c) The court, therefore, looks not solely at the words used in the contract but also the relevant context (both factual and legal) at the time the contract was put in place;

(d) For this purpose, the context includes anything which was reasonably available to the parties at the time the contract was concluded. While the negotiations between the parties and their evidence as to their subjective intention are not admissible, the context includes any objective background facts or provisions of law which would affect the way in which the language of the document would have been understood by a reasonable person;

(e) A distinction is to be made between the meaning which a contractual document would convey to a reasonable person and the meaning of the individual words used in the document. As Lord Hoffmann explained in the Investors Compensation Scheme case at p. 912, the meaning of words is a matter of dictionaries and grammar. However, in order to ascertain the meaning of words used in a contract, it is necessary to consider the contract as a whole and it is also necessary to consider the relevant factual and legal context. That said, in the present case, no argument was made about the relevant legal or regulatory context against which the policy of insurance was put in place;

(f) While a court will not readily accept that the parties have made linguistic mistakes in the language they have chosen to express themselves, there may be occasions where it is clear from the context that something has gone wrong with the language used by the parties and, in such cases, if the intention of the parties is clear, the court can ignore the mistake and construe the contract in accordance with the true intention of the parties;

(g) As O'Donnell J. made clear in the MIBI case, in interpreting a contract, it is wrong to focus purely on the terms in dispute. Any contract must be read as a whole and it would be wrong to approach the interpretation of a contract solely through the prism of the dispute before the court. At para. 14 of his judgment in that case, O'Donnell J. said:-

“It is necessary therefore to see the agreement and the background context, as the parties saw them at the time the agreement was made, rather than to approach it through the lens of the dispute which has arisen sometimes much later.””7

24. In the present instance, the parties agreed that the entirety of the “net proceeds of sale” achieved for both properties would be used in discharge of the mortgage of the family home (paragraph 8). What did this this term “net proceeds of sale” mean? It is not defined and does not have an objective meaning as the deductions to be made from gross proceeds are not objectively determinable. In this regard, I have considered the judgment of the Supreme Court in MP v. AP [1999] WJSC-SC 7046 where that court had to determine the meaning of the words “nett of income tax” in the context of spousal maintenance agreed between spouses. Keane CJ stated:

“There is undoubtedly force in the contention advanced on behalf of the wife, which found favour with the learned High Court judge, that the words "nett of income tax" cannot be treated as mere surplusage and must be given some meaning. However, at best, from the wife's point of view, the expression was unhappily ambiguous. I am satisfied that, in these circumstances, the issue as to what the parties intended can only be resolved in the light of evidence as to the "factual matrix" in which the consent was arrived at, to use the well- known expression of Lord Wilberforce in Riordan Smith Line Ltd. .v. Yngvar Hansen-Tangen & Others (1976) 1 WLR989.”

7 There were certain additional principles (relevant to insurance contracts which were being considered in that case) set out by McDonald J. in that case but those referenced are those pertinent to the matter under consideration. 25. Having so determined, the Supreme Court decided that the only possible course of action, in terms of the ambiguity, was to:

“remit the proceedings to the High Court for a determination as to whether, in the light of such oral evidence as may be relevant and admissible, the consent annexed to the order of the 10th March 1994 should be rectified so as to give effect to what is claimed on behalf of the defendant to have been the intention of the parties to the said consent, …”

26. Is this the appropriate course of action in this case in circumstances in which either (a) the meaning of “net proceeds of sale” is ambiguous (did it include deductions for capital gains tax arising from the sale of the properties or not? or (b) was there in fact no agreement between the parties in relation to this issue of what was to be deducted from the gross proceeds to arrive at a net figure? 27. A similar circumstance arose in M.M v. J.M [2003] WJSC-HC 7846 where Murphy J. had to consider the meaning of net proceeds of sale in the context of capital gains tax arising on a property sale, in that instance, the wife contending that it was always envisaged that the husband would discharge the revenue liability and, the husband, having discharged 50% of such liability, disputing that he was responsible for the discharge of the entirety of such liability. There the court heard extensive evidence concerning the circumstances surrounding the conclusion of the agreement with a view to determining what was intended. 28. The essence of this dispute is whether, the term “net proceeds of sale”, not being defined in the contract, the court may determine what was intended having regard to the text in context? In Lanigan v. Barry [2016] IESC 46, Clarke J. considered this at paragraph 3.11:

“The “text in context” approach requires the Court to consider the text used in the context of the circumstances in which the document concerned was produced including the nature of the document itself.”

THE EVIDENCE BEFORE ME

29. The original motion, as heard before the Circuit Family Court, was heard grounded upon the following Affidavits: (A) Grounding Affidavit of I.J sworn on the 14th January 2025; (B) Replying Affidavit of G.H sworn on the 11th February 2025; (C) Supplemental Affidavit of I.J sworn on the 6th March 2025. 30. The following additional Affidavits were sworn consequent upon the Order of this Court (Jordan J.) referenced above: (A) Affidavit of Marian Moylan sworn on the 10th July 2025; (B) Affidavit of Richard Durkin sworn on the 10th July 2025. 31. The background to the compromise achieved is referenced in the grounding affidavit. The Respondent transferred his interest in the family home to the Appellant, with the Appellant assuming responsibility for the mortgage. There were two other properties, additional to the family home, one in Wexford [PROPERTY 1] and one in Dublin [PROPERTY 2]. It would appear that legal title to the former was held in the sole name of the Appellant but the Respondent asserted joint ownership in his Affidavit of Means together with listing the mortgage on this property as a liability. The mortgage repayment is listed as an expense. It was agreed that these would be sold and “the entirety” (paragraph 8) of the net proceeds of sale were to be applied in reduction of the family home mortgage. The provision states that “the entirety of the net proceeds of sale shall be used to pay down the mortgage on the family home immediately upon receipt.” 32. There was then a provision that the Appellant would endeavour to transfer the mortgage on the family home into her sole name by a stated date and, if she could not do so, the property was to be sold and the Appellant entitled to the entirety of the proceeds of sale. 33. There was also a clause (paragraph 11) that the Appellant was to receive a lump sum of €300,000 comprising the proceeds of sale of the two properties with the balance to be paid by the Respondent. This provision would appear to envisage that the combined net proceeds to be achieved from the sale of the two properties would be less than €300,000. There is no direction as to how the €300,000 is to be expended save that, pursuant to the previously referenced paragraph 8, the entirety of the proceeds from the property sales was to be applied in mortgage reduction. 34. In the event, the net proceeds of sale, allowing for discharge of mortgage and costs of sale which the parties would appear to agree were to be deducted in ascertaining the net proceeds, were in the sum of €193,639.95 in respect of PROPERTY 1 and €141,491.74 in respect of PROPERTY 2, totalling €335,131.69. The Appellant contends she is entitled to this sum, pursuant to paragraph 8. The Respondent contends that she is entitled only to €300,000 (being the lump sum referenced in paragraph 11) and therefore when the proceeds from the second property came in, he paid over a sum sufficient to bring the €193,639.95 to €300,000, being €106,360.05. She contends that she is due €35,131.69, being the balance of the net proceeds of sale from PROPERTY 2. The Respondent contends that she received the €300,000 due by way of lump sum under the agreement and has no further entitlement. The matter is further complicated by the fact that there was a capital gains tax liability relating to the Wexford property which the Appellant discharged from the proceeds of that property, this liability being in the sum of €46,709. 35. The mortgage on the family home was in the sum of approximately €804,000 at the date of the settlement. 36. The Appellant contends that she has received €35,131.69 less than she should have done. She says (and it is not disputed) that the net proceeds of sale of the Dublin property (after deduction of mortgage and costs of sale) was in the sum of €141,491.74. She avers that having received only €106,360.05, the difference between these sums is due and owing to her, namely €35,131.69. 37. The Respondent contends that this would result in an overpayment to the Appellant, as she would have received a total sum of €335,131.69. 38. I am of the view that much of the difficulty in this case arises from two factors: (a) the term “net proceeds of sale” is not defined8 and (b) there is an inconsistency between paragraph 8 and paragraph 11 in the event that the combined net proceeds exceed €300,000. However, it seems to me that the meaning of the terms are amply clear on their face. As the Respondent has correctly argued, subjective intention is irrelevant. I must have regard to the natural and ordinary meaning of words and adopt an objective approach. 39. Paragraph 8 speaks of the entirety of the net proceeds being applied against the mortgage. This is absolutely clear. There is provision for a lump sum payment, with usage of funds not being referenced in this provision (paragraph 11). I have concluded that this was to provide a guaranteed sum. If the net proceeds equalled or exceeded this, the Respondent had no more to pay. If they did not, he was to make up the balance. The terms are

8 The Respondent avers that the Terms of Settlement are being unilaterally interpreted by the Respondent in stating that the net proceeds of sale took into account the payment of taxes. It is likewise arguable that the Respondent is acting unilaterally in saying that the net proceeds of sale excluded tax liabilities arising on a beneficially jointly held property (the Respondent clearly so contended in the context of his Affidavit of Means). The agreement was to apply the entirety of the net proceeds in mortgage reduction. The Respondent says that €300,000 was to be so discharged (which is not what the Terms of Settlement provide for). However, he does not address from where the capital tax liabilities were to be discharged if not from the proceeds of sale of the properties disposed of. absolutely clear on their face. Fortunately for the Respondent, the combined net proceeds were such that no additional balancing sum was required and, indeed, the sum to be paid off the mortgage on the family home exceeded the €300,000 lump sum. While I can see absolutely no reason why a tax liability arising in the context of the sale should be the sole responsibility of the Appellant, the reality is that the contractual terms were silent in relation to this liability, the Appellant was the sole legal owner and consequently the tax liability was hers. It is not for me to impose a gloss of fairness or rationality upon the agreement or to re-write or reconfigure the agreement - it is the parties’ agreement not the court’s nor is it appropriate that I would probe into the arena of subjective intentions. The Appellant discharged this liability from the net proceeds received in respect of PROPERTY 1. 40. I must reference paragraph 4 of the Replying Affidavit of the Respondent. It states: “I further say that my entire focus during the divorce was that our dependent children stay in the family home and therefore, I did not want the family home to be sold during the divorce, after the divorce or at the end of this 3 year period either. Accordingly, it was agreed that the Applicant would be paid the sum of €300,000 which sum was to be offset against the said mortgage. These funds ie that €300,000 were to come out of the proceeds of sale of the two properties in Rosslare and Finglas, and if there was a shortfall, it was this deponent who was responsible to pay any shortfall/balance due to make up the sum of €300,000.00. I say and believe that my only condition was all of the €300,000 was to be offset against the mortgage to effectively pay down the mortgage, which is why it is referred to at paragraph 8 of the Terms of Settlement.” 41. These averments are in part incorrect and in part inconsistent with his current position. There is no reference to payment down of the mortgage in paragraph 11 (the €300,000 lump sum payment) at all. The only reference to the payment down of the mortgage in the Terms of Settlement is that the entirety of the net proceeds of sale were to be thus applied. This did not occur due to the Respondent retaining a portion of the net proceeds of sale from the second property disposed of. I also fail to understand the averments of the Respondent concerning the retention of the family home and the payment down of the sum of €300,000 being his “only condition” when, in fact, due to his actions, the Appellant had only a sum of €253,290.05 on the monies paid to her. The complete disregard of revenue liabilities arising on the sale of these properties is incomprehensible, disingenuous and entirely inconsistent with the repeatedly deposed to objectives of the Respondent. 42. The argument of the Respondent, if acceded to, only makes it less likely that the Appellant would succeed in having the mortgage on the family home transferred to her and, in consequence, avoid the sale of that property which was what was envisaged. Rather than the “entirety” of the net proceeds, amounting to €288,421.74 (after deduction of the capital gains tax lawfully due and owing and paid by the Appellant) being applied in mortgage reduction as was envisaged, the Respondent seeks to have only €253,290.05 paid off. This is not what the terms of settlement clearly provided for. 43. Having regard to the required approach indicated in Lanigan v. Barry [2026] IESC 46 (Clarke J.) and the guidance of O’Donnell J. in Law Society of Ireland v. MIBI [2017] IESC 31, I have concluded that it is possible to objectively interpret the agreement concluded in this case. The aim of the terms of settlement was to provide the Appellant with sufficient financial resources to bring down the mortgage on the family home so that she would be in a position to take over that mortgage and have the Respondent released from responsibility for it. The Respondent acknowledges this in his Affidavit sworn herein, indeed, he says that the Appellant was to reduce the balance by €300,000 and he accuses her of breaching the agreement by failing so to do. The wife likewise agrees that there was to be a mortgage reduction with the entirety of the net proceeds of sale to be paid off the mortgage. It is difficult to see how these objectives, acknowledged by both parties, could be achieved if the wife was to be responsible for the discharge of capital tax liabilities. It is clear that the entirety of the proceeds of sale (€193,000) were paid over from the first house sale. The wife discharged the capital gains tax and paid off the balance. The entirety of the second tranche of the “entirety of the net proceeds of sale” were not paid over to be paid off the mortgage. That was what the agreement provided for. The words are clear. The net proceeds of sale of PROPERTY 2 were €141,491.74. The sum only of €106,360.05 was paid. This does not accord with the clear, objective words in the contract. Therefore, the balance over and above the €106,360.05 should be paid to the Appellant. This is the sum of €35,131.69 sought by the Appellant in her motion. 44. Finally, I must state that I do not consider that the Appellant was in breach of the terms agreed. Capital gains tax was lawfully payable and had to be paid. She has not sought to attribute this liability to the husband (notwithstanding that he asserted joint ownership of the Wexford property in his Affidavit of Means) but clearly the net proceeds available for reduction of the mortgage would have to have regard to the tax payable. Therefore, the entirety of the net proceeds available to the Appellant from Wexford were used in mortgage reduction. Under the objectively and expressly stated provisions, she was to have €141,491.74 from the Dublin property to apply against the mortgage also. The Respondent paid her much less. There was no justification for so doing having regard to the terms agreed. 45. The €300,000 lump sum provision made no reference to mortgage discharge. It simply provided for a lump sum to be paid using a number of different sources. If that sum was achieved from the sale proceeds, no further sum would have to be added by the Respondent. Fortunately, the sale proceeds were sufficient that he did not have to contribute further. However, this is entirely separate and distinct from the clear and objectively undeniable agreement that the entirety of the net proceeds of sale should be applied towards the mortgage. No cap is placed on this. The word “entirety” is amply clear.

DECISION

46. It seems to me that the terms are clear on their face and that this accords with the context, both factual and legal, at the time of the settlement. I have not and do not believe it necessary or appropriate that any extraneous information would be examined. The entirety of the net proceeds were to be applied in mortgage reduction and, if required, a supplementary sum was payable to bring the lump sum to be received to €300,000 if this was not achieved from the net proceeds of sale. This was achieved without such additional sum being payable. The Respondent, notwithstanding claiming a joint beneficial interest in the Wexford property in his Affidavit of Means, has in retrospect decided and averred that the Appellant, being the legal owner, should bear the full burden of capital gains tax payable. I am very uncertain that this was what was intended but unfortunately the agreement is silent in relation to liability for discharge of such tax. However, it is not silent in relation to the entirety of the net proceeds being available to the Appellant. In these circumstances, I fail to understand why the Respondent believes that he is entitled to benefit from such sale proceeds to the tune of €35,131.69 and to leave the Appellant with the full burden of tax when he avers that his intention was to assist in reducing the family home mortgage to the benefit of his wife and children. I will allow the appeal and direct the Respondent to pay the sum of €35,131.69 as sought in the Notice of Motion within 28 days of the date of this judgment. 47. I will hear from the parties in relation to matters arising.