ACC Loan Management Ltd v Fagan and Another
| Jurisdiction | Ireland |
| Judge | Mr. Justice Meenan |
| Judgment Date | 07 March 2018 |
| Neutral Citation | [2018] IEHC 140 |
| Docket Number | [2017 238 CA] |
| Court | High Court |
| Date | 07 March 2018 |
AND
[2018] IEHC 140
[2017 238 CA]
THE HIGH COURT
MIDLAND CIRCUIT
COUNTY OF WESTMEATH
Banking and Finance – Summary judgment – Non-payment of loan – Possession of property – Time extension – Procedural infirmity – Illness
Facts: The plaintiff filed an appeal against the order of the Master of the High Court for granting an extension of time to the second named defendant for filing the notice of appeal against the impugned order of the Circuit Court for granting possession of the subject property to the plaintiff. The second named defendant contended that she could not lodge an appeal in the prescribed time limit owing to her illness. The plaintiff objected to the second named defendant's contention and stated that the second named defendant had also filed unsuccessful judicial review proceedings in relation to the impugned order of the Circuit Court.
Mr. Justice Meenan granted an order for discharging the order of the Master of the High Court. The Court also granted an order for refusing the second named defendant's application for the extension of time to serve and lodge the notice of appeal. The Court noted that the second named defendant was aware of the period of expiration of lodging the notice of appeal. The Court found that the grounds of appeal identified by the second named defendant, had already been determined in the course of judicial review proceedings.
On 13th July, 2004 the plaintiff, previously ACC Bank plc., advanced two loan facilities to Temple Spa Limited. The security provisions of the facility letters required the company's directors, the defendants, to provide a personal guarantee supported by a full legal charge over Temple House on 14.5 acres of land at Horseleap, County Westmeath. The charge was duly registered as a burden on the said property on 17th May, 2007. The plaintiff was the registered owner of the charge.
The company defaulted on the loan and by a letter of demand dated 1st November, 2010 payment was sought from the defendants for the monies due to the plaintiff. These monies were not discharged and on 16th November, 2010 a receiver was appointed in respect of the said property.
The plaintiff initiated proceedings against the defendants and judgment was granted against them in the sum of €5,780,460.28 on 9th May, 2011. This sum was not discharged and on 21st May, 2012 the defendants were adjudicated bankrupt.
High Court proceedings were initiated seeking possession of Temple House, the defendants' private dwelling house and approximately 14.5 acres at Temple, Horseleap, County Westmeath ( ACC Bank v. Declan Fagan (A Bankrupt) and Bernadette Fagan (A Bankrupt) [2013] IEHC 346). In these proceedings, the defendants sought to challenge the validity of the charge over the said property.
In her judgment, Finlay Geoghegan J. rejected the defendants' challenge to the charge but permitted them to make submissions in defence of the application for possession, but only on the basis that the plaintiff was the registered owner of a charge over the said property.
For reasons which it is not necessary to outline here, Finlay Geoghegan J. concluded that the plaintiff was not entitled to an order for possession of the said property. Subsequently, on 18th March, 2014, the plaintiff (then ACC Bank plc.) issued a Civil Bill for possession.
The Civil Bill came on for hearing before the Circuit Court and by order of the Circuit Court dated 28th July, 2015 an order for possession of the property was made in favour of the plaintiff.
On 7th September, 2015 the defendants made an ex parte application for leave to apply for judicial review seeking inter alia an order of certiorari quashing the order of the Circuit Court granting possession of the said property. At a ‘telescoped’ hearing, Fagan v. ACC Loan Management Ltd. [2016] IEHC 233, the application for leave was heard on notice to the plaintiffs.
In a written judgment, McDermott J. refused the reliefs sought by the defendants.
The decision of McDermott J. was appealed to the Court of Appeal and, in an ex tempore judgment delivered on 17th July, 2017, the Court of Appeal dismissed the defendants appeal.
Following the dismissal of the appeal, the second named defendant issued a notice of motion returnable before the Master of the High Court seeking an order extending time for the lodgement of a notice of appeal against the order of the Circuit Court made 28th July, 2015. The application was grounded on an affidavit of the second named defendant. A replying affidavit was filed by Mr. Paul Shaw, on behalf of the plaintiff.
There were further affidavits filled by the second named defendant and Mr. Shaw.
The notice of motion was heard by the Master on 7th December, 2017. The Master acceded to the application of the second named defendant and extended time within which to appeal the order of the Circuit Court dated 28th July, 2015.
The matter that is before this Court is an appeal by the plaintiff against the order of the Master of the High Court extending time within which to appeal the said order of the Circuit Court.
The second named defendant appeared in person at the hearing of the matter.
The test that a court should apply when considering an extension of time for the purposes of an appeal is set down in Éire Continental Trading Co. Ltd. v. Clonmel Foods Ltd. [1955] IR 170, which states:-
(i.) ‘The applicant must show that he had a bona fide intention to appeal formed within the permitted time.
(ii.) He must show the existence of something like mistake and that mistake as to procedure and in particular the mistake of counsel or solicitor as to the meaning of the relevant rule was not sufficient.
(iii.) He must establish that an arguable ground of appeal exists.’
Both the plaintiff and the second named defendant were in agreement that this is the appropriate test which a court should apply in an application such as this.
It is to be noted that the application to extend time for the purposes of appealing the order of the Circuit Court is brought by the second named defendant only.
The second named defendant relied upon a letter dated 6th August, 2015 to the plaintiff to establish that there had been a bona fide intention to appeal within the permitted time. This letter was sent by both defendants. This letter was responded to by a letter dated 25th August, 2015 from the plaintiff wherein the plaintiff acknowledged receipt of the letter of 6th August, 2015 and stated that the decision to appeal was entirely a matter for the defendants.
In a further letter dated 7th September, 2015 from the defendants to the plaintiffs, the defendants stated:-
‘I wrote to you on 6th August indicating our intention to...
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The Governor and Company of the Bank of Ireland v Morrissey
...the defendant was unaware of the time limit. 17 The plaintiff relies on the decision of Meenan J. in ACC Loan Management Ltd. v. Fagan [2018] IEHC 140 as authority for the proposition that no legal or operative mistake is made by a person who elects to proceed by way of judicial review and......
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ACC Loan Management Ltd v Pepper Finance Corporation (Ireland) Designated Activity Company
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The Governor and Company of the Bank of Ireland v Morrissey
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