ACC Bank Plc v Cunniffe
| Jurisdiction | Ireland |
| Judge | Ms. Justice Whelan |
| Judgment Date | 13 October 2017 |
| Neutral Citation | [2017] IECA 261 |
| Date | 13 October 2017 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Neutral Citation Number: [2047] IECA 261 Record number 2014/1416 Record number 2014/1421 Record number 2016/51 |
AND
AND
AND
AND
AND
[2017] IECA 261
Whelan J.
Irvine J.
Whelan J.
Barr J.
Neutral Citation Number: [2047] IECA 261
Record number 2016/479
Record number 2014/1416
Record number 2014/1421
Record number 2016/51
THE COURT OF APPEAL
CIVIL
Slip rule – VAT receipt – Abuse of process – Appellants seeking to appeal against High Court orders – Whether proceedings ought to be struck out as frivolous/vexatious disclosing no reasonable cause of action and being an abuse of process
Facts: On 29th June, 2017, four separate appeals came before the Court of Appeal from separate determinations and orders made in the High Court. In the first proceedings, the first appellant, Mr A Cunniffe, filed a notice of appeal in the Court of Appeal against the judgment and orders of McGovern J made in the High Court on 17th October, 2016 on an application pursuant to Order 28, rule 12 (the slip rule) brought by the respondent, ACC Bank plc, to effect an amendment to an order of Finlay Geoghegan J made in the High Court on 7th February, 2012 in special summons proceedings for the purposes of ensuring that the said order reflected the explicit direction of the judge made in her ex tempore judgment delivered on the same date. In the second proceedings, the appellants issued a motion on 2nd July, 2014, seeking an order directed to the second and third defendants, Mr Wallace (the receiver) and KPMG, requiring them to produce a professional invoice to the appellants in respect of the VAT paid and discharged on fees due to the receiver out of the proceeds of sale of certain lands the subject matter of a mortgage and which were sold, post auction, on the directions of the receiver in the month of May, 2010. In the third proceedings, the respondents issued a notice of motion on 3rd July, 2014 seeking: i. an order striking out the proceedings pursuant to Order 19 r. 27/r. 28 as frivolous/vexatious disclosing no reasonable cause of action and being an abuse of process; ii. an order vacating any lis pendens registered against certain lands in Co. Roscommon the subject of the security of the respondent bank, ACC Bank plc; and iii. an order pursuant to the inherent jurisdiction of the court requiring the plaintiffs to seek leave of the court prior to the institution of any further proceedings wherein (a) the banks’s right to sell the mortgaged lands is disputed or (b) whereby the plaintiffs assert any other claim such that the said lands are made the subject of ongoing litigation. In the fourth proceedings, on 16th September, 2014 Gilligan J declined to make an Isaac Wunder order against Mr Lawless. Subsequently a further notice of motion dated 13th July, 2015 was issued by the plaintiffs seeking that the appellants be restrained from instituting any proceedings whatsoever whether by summons or notice of motion or otherwise in relation to six specific matters.
Held by Whelan J that, regarding the first proceedings, she was not satisfied that any basis had been made out to interfere with the judgment and orders of the High Court judge. Regarding the second proceedings, she was satisfied that the trial judge applied the jurisprudence, the legal principles and the legislation including relevant EU legislation as well as the domestic statutory provisions correctly to the facts of the case and further she was satisfied that he was correct in his conclusion that the appellants were fundamentally mistaken in respect of their application. Regarding the third proceedings, she was satisfied in the circumstances that there was no basis to interfere with the judgment and order of the trial judge to the extent that same was based on the inherent jurisdiction of the court. Regarding the fourth proceedings, she held that in light of the facts and circumstances of the case the Issac Wunder order was appropriately made and should not be interfered with.
Whelan J held that he appeals should be dismissed.
Appeals dismissed.
By letter dated 7th August, 2007 (‘the facility letter’) ACC Bank (hereinafter called ‘the Bank’) approved a credit facility in the amount of €3,149,500 in favour of Aidan Cunniffe, Rita Cunniffe and John Lawless. The facility letter was declared to be subject to the bank's Commercial Credit General Terms and Conditions (December 2006 Edition). Clause 3 of the facility letter provided that the terms of the credit facility was 18 months from the date of first drawdown unless demand for earlier payment was made in accordance with Clause 6. Clause 4 of the facility letter provided that the purpose of the facility was:-
(i) to purchase a dwelling house and 134 acres of agricultural land at Mullaghardagh, Ballyforan, Co. Roscommon;
(ii) to repay ACC Bank's loan reference 10005314;
(iii) to provide additional funding to cover legal fees and stamp duty;
(iv) to clear a Bank of Ireland loan;
(v) to provide for upgrades to the lands (to facilitate the borrowers obtaining grants from the Department of Agriculture under the Rural Environment Protection Scheme) and also improvements to a period dwelling house on the lands at Mullaghardagh, Co. Roscommon; and,
(vi) to fund the handling charges of €150,000
The date of maturity of the loan facility was 15th May, 2009. On 4th August, 2009 the bank issued a letter of demand to the borrowers. On 13th October, 2009, the bank appointed Kieran Wallace (hereinafter ‘the receiver’) as receiver pursuant to their security instrument. In December, 2009, the bank issued summary proceedings against the borrowers (record number 2009/5579 S).
In the years following, a number of proceedings by way of special summons, plenary summons, and several motions have issued between the parties.
On 29th June, 2017, four separate appeals came before this Court from separate determinations and orders made in the High Court. Each is considered hereafter in turn.
On 28th October, 2016, the first named appellant in the above first entitled proceedings filed a notice of appeal in the Court of Appeal against the judgment and orders of McGovern J. made in the High Court on 17th October, 2016 on an application pursuant to Order 28, rule 12 (commonly referred to as the ‘slip rule’) brought by the respondent to effect an amendment to an order of Finlay Geoghegan J. made in the High Court on 7th February, 2012 (and perfected 8th March, 2012) in special summons proceedings for the purposes of ensuring that the said order reflected the explicit direction of the said learned judge made in her ex tempore judgment delivered on the same date.
The respondent opposes the entire appeal.
In proceedings [2011/ 753 SP] [2011/ 254 COM] the bank issued a special summons seeking relief pursuant to the Land and Conveyancing Law Reform Act 2009 and in particular s. 117 thereof in relation to the interest of the appellants Aidan Cunniffe, Rita Cunniffe and John Lawless in certain lands comprised in folios in Co. Roscommon.
The bank had previously obtained summary judgment in the High Court against the appellants jointly and severally on 4th February, 2010 in proceedings [2009/5579 S].
On 7th February, 2012, the special summons proceedings came on for hearing in the High Court before Finlay Geoghegan J. The bank was seeking certain declarations and consequential orders pursuant to O. 38, r. 8 of the Rules of the Superior Courts to the effect that the estate or interest of the appellants in certain folios in Co. Roscommon were charged with the judgment debt. There was evidence before the High Court at the said hearing that a payment for an unspecified amount had been made in and towards satisfaction of the judgment debt. The appellants made no challenge to the registration of the judgment mortgages against their interests in the said folios.
Finlay Geoghegan J. directed that the order should be formulated so that an allowance be expressly provided for, to ensure that ultimately an appropriate reduction be effected to arrive at the net sum due on foot of the judgement, stating:-
‘If I phrase it this way, because I think there must be allowance, I do not have and not [sic] declaring well charged a specific sum, it is the judgment debt, but I think the appropriate phraseology would be less any sum received by the plaintiff in reduction of the judgment debt. That covers the situation.’ (p. 6 of the note of the ex tempore judgment of Finlay Geoghegan J. dated 7th February, 2012)
Unfortunately, the perfected order failed to record this specific direction and noted simpliciter:-
‘And it appearing that there is due to the plaintiff on foot of the said judgment a sum of €3,793,872.13.
IT IS ORDERED that in default of payment by the first, second and third named defendants to the plaintiff of the said sum and interest thereon and the costs hereinafter awarded within one month from the date hereof the said lands and premises be sold at such time and place subject to such conditions of sale as shall be settled by the Court …’
The order was clearly incorrect and runs counter to the express statement of the learned judge that she was not declaring well charged any specific sum. The order was perfected on 8th March, 2012. It was served by...
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