Allied Irish Banks Plc v Thomas Darcy and Another
| Jurisdiction | Ireland |
| Judge | Mr. Justice David Keane |
| Judgment Date | 20 May 2015 |
| Neutral Citation | [2015] IEHC 353 |
| Court | High Court |
| Date | 20 May 2015 |
[2015] IEHC 353
THE HIGH COURT
BETWEEN
AND
This is an application by the plaintiff bank ("the bank") for an Order for possession of four specified properties ("the properties") mortgaged to it by the defendants. The bank seeks the said Order pursuant to s. 62(7) of the Registration of Title Act 1964 and s. 1 of the Land and Conveyancing Law Reform Act 2013.
The application is brought by special summons that issued on the 28 th January 2014. In the special indorsement of claim set out in that summons, the bank identifies each of the properties and the date of the "all sums due" legal charge to which each property is subject in favour of the bank.
The special sumons is grounded on an affidavit sworn on the 28 th January 2014 by Conal Regan, who is a Manager of Intermediate Services with the bank. Mr Regan avers that the defendants have defaulted in the repayment of the loans they obtained to fund the acquisition, re-financing or development of those properties.
Mr Regan has exhibited the deed of indenture or mortgage and an attested copy of the folio and the certificate of charge in respect of each of the properties.
Mr Regan avers that, by four separate letters of loan sanction dated the 19 th January 2006, 17 th July 2007, 10 th March 2008 and 4 th June 2008, the terms of which were accepted and signed by the defendants, the plaintiff agreed to advance to the defendants five separate loan facilities with a total value of €15,808,303.00.
By letter dated the 27 th April 2010, the bank demanded repayment of the sums outstanding on various loan accounts held by the defendants, including the sum of €17,131,877.80, being the total amount due in respect of the loan facilities just described, together with interest.
In High Court summary proceedings bearing the title "Allied Irish Banks plc v. Thomas Darcy and Antoinette Darcy, Record No. 2292S of 2010" the bank obtained an Order for judgment against the defendants on a default basis on the 16 th February 2011 in the sum of €17,422,790.53. The defendants later brought an unsuccessful application to set aside that judgment before Ryan J. in the High Court.
By letter dated the 21 st November 2013, the bank demanded payment of the sum of €21,154,079.30, being the amount owed by the defendants on foot of the judgment just described plus accumulated Courts Act interest at 8%. Mr Regan avers that the defendants have failed, neglected or refused to honour that demand by discharging the sum due, with the result that the bank issued the present proceedings, as already outlined, on the 28 th January 2014.
The bank relies on averments contained in an affidavit of service of Eoin Brereton, solicitor, sworn on the 28 th February 2014, and in a further affidavit of Conal Regan, sworn on the 1 st April 2014, that the bank knows of no other person (apart from the defendants who have been served with these proceedings) in actual occupation of, or in receipt of the rents and profits of the properties, as evidence that it has complied with the requirement of Order 9, rule 14 of the Rules of the Superior Courts.
Accordingly, the bank contends that it is entitled prima facie to the order that it seeks for possession of the properties. I will return to the question of the necessary proofs later in this judgment.
In the grounding affidavit of Mr Regan, the bank acknowledges that the present proceedings have been necessitated by a decision and Order of the Supreme Court made on the 13 th November 2013, to set aside an earlier Order of this Court made on the 16 th April 2012 ( per McGovern J.), granting the reliefs that the bank now seeks for a second time in these proceedings.
Mr Regan avers that the appeal before the Supreme Court proceeded on the basis that, regardless of the outcome of the defendants' appeal in those proceedings, by reason of the commencement of the relevant provisions of the Land and Conveyancing Reform Act 2013 on the 31 st July 2013 the plaintiff would now be entitled to invoke the terms of s. 8(7) of the Registration of Title Act 1964 to apply to the court in a summary manner for the possession of the relevant property in new and separate proceedings, were it disposed to do so, as, it transpires, it was.
However, it would appear that the bank's failure or omission to serve a notice of discontinuance in respect of the first set of proceedings, which had been remitted to plenary hearing by the Supreme Court, before issuing the present proceedings, resulted in an Order made by the Master of the High Court on the 9 th May 2014 striking out the special summons in the present proceedings. The Order of the Master was appealed to this Court, where, after a contested hearing on the 17 th October 2014, Gilligan J. allowed that appeal and reinstated the special summons in the list for hearing, refusing a stay upon that determination. I am given to understand that the first named defendant subsequently applied to the Court of Appeal for a stay on the proceedings pending the determination of the defendants' appeal against the Order of Gilligan J. but his application in that regard was struck out in view of the bank's undertaking that, should it be successful in obtaining the Order for possession of the properties that it now seeks, it will not attempt to enforce that Order pending the determination of the defendants' appeal.
In his Order made on the 17 th November 2014, Gilligan J. directed the defendants to file any replying affidavit or affidavits they may wish by close of business on the 29 th October 2014. That was not done. Instead, the defendants each sought to rely on an affidavit that each of them has sworn on the 13 th November 2014, the day prior to the hearing of the present application before me. No explanation or excuse has been provided in that regard. The bank indicated that it was not maintaining any objection to the late filing of those affidavits, on the basis that any such objection would almost certainly necessitate an adjournment, in circumstances where the bank was anxious to proceed.
Counsel on behalf of the first named defendant submitted, quite correctly in my view, that for the purpose of the present application no regard should be had to any evidence purportedly adduced in the context of the first set of special summons proceedings brought by the bank, which proceedings have now been discontinued.
However, I do not accept that it is correct to suggest, as Counsel appeared to do, that the Court must instead consider afresh any issue or argument capable of being informed by the uncontroverted averments contained in the first named defendant's affidavit sworn on the 13 th November 2014, without regard to the extent that those issues and arguments have already been determined by (or could reasonably have been raised before and, thus, determined by) Ryan J. in the context of the defendants' unsuccessful application to set aside the summary judgment in the sum of €17,422,790.53 that the bank has already obtained against them.
A single example may serve to illustrate this point. At pages 6 and 7 of his ruling on the defendants' application to set aside that judgment, in sequential paragraphs designated from (a) to (j), Ryan J. summarises the arguments relied upon by the defendants, which include the following:
a "(g) The [loan] contract was unconscionable and totally one sided and the plaintiff changed the terms and conditions at will. Mr Darcy cites an example of this as he says that occurred on the 3 rd September 2009, when the bank without notice appointed a planning consultant to take over the running of the planning of the proposed development and also compelled the defendants to withdraw judicial review proceedings by threatening to terminate the loan facility and to evict the defendants from their family home over which the bank held a legal charge."
At page 8 of the judgment, Ryan J. concisely addressed that argument in the following terms:
"A mere allegation that the contract was unconscionable or one sided and that the plaintiff changed the conditions "at will" is not evidence to prove breach of contract or to afford a defence. The example of oppressive behaviour put forward does not constitute a ground of defence."
In the present application, much of the affidavit sworn at the eleventh hour - in breach of the direction of Gilligan J. - by the first named defendant is devoted to matters relevant to the same issue or argument redux, or to some variation upon it that might have been raised before Ryan J. but which evidently was not.
I am satisfied that it is not open to me to consider any issue of the defendants' liability in respect of the underlying loan facilities, as that issue has already been determined against the defendant by this Court. The said determination is reflected in the Order and judgment of Ryan J. made on the 20 th July 2012. In reaching that conclusion, I do not think, as was suggested by Counsel for the first named defendant, that I am making the mistake of conflating the present proceedings with any previous ones; rather I believe that I am properly and necessarily applying the doctrine of res judicata and the rule in Henderson v. Henderson.
The second issue raised by Counsel for the first named defendant is one by now very familiar to this Court but which was addressed by Counsel as though it were a matter of first impression. Shortly put, Counsel submits that, as a matter of probability, the loans at issue (in respect of which the liability of the defendants has...
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Allied Irish Banks Plc v Darcy
...for possession of, inter alia, ‘Woodview’ (Record No. 2014/ 44SP). By a judgment of the High Court (Keane J.) dated 20th May, 2015 ( [2015] IEHC 353), it was found that the Bank was entitled to possession of four properties, including ‘Woodview’. That judgment was reflected in an order of ......