Angela Oman v James Oman
| Jurisdiction | Ireland |
| Judge | Mr. Justice McGovern |
| Judgment Date | 16 October 2019 |
| Neutral Citation | [2019] IECA 269 |
| Date | 16 October 2019 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No. 2018/00272 Record No. 2018/331 |
[2019] IECA 269
THE COURT OF APPEAL
CIVIL
Peart J.
McGovern J.
McCarthy J.
Record No. 2018/00272
Record No. 2018/331
AND
AND
AND
Frivolous and/or vexatious proceedings – Bona fide cause of action – Abuse of process – Appellant seeking to appeal against an order striking out the proceedings – Whether the proceedings were frivolous and/or vexatious
Facts: Two separate causes of action and appeals were inter-connected insofar as they both concerned premises at 114-116, Capel Street, Dublin (the property) and both involved Ms Oman. The proceedings bearing appeal number 2018/000272 were referred to as the “Angela Oman proceedings” and the appeal bearing record number 2018/000331 was referred to as the “Bank proceedings”. The appeal in the Angela Oman proceedings was against an order of O’Connor J made on the 13th June, 2018 striking out the proceedings on the grounds that there was no bona fide reason for the continued prosecution of the proceedings against the first respondent, Mr Oman, who was her husband, and on the grounds that the proceedings against the second and third respondents, Allied Irish Banks plc and Mr Tennant, were frivolous and/or vexatious and that Ms Oman had no bona fide cause of action. In the Bank proceedings, Allied Irish Banks plc (the bank) and Mr Tennant (the receiver) appealed a stay on an order made by Stewart J on the 6th July, 2018. In her order, she granted the bank/receiver an injunction restraining Ms Oman or any persons with notice of the order from trespassing or entering or otherwise attending the premises known as 114/116, Capel Street, Dublin or any part thereof, and that she deliver up to the bank and receiver all keys, access codes, alarm codes on the 2nd floor of the property where she was residing. The High Court judge directed that these orders be stayed pending the determination of the Angela Oman proceedings. Ms Oman cross-appealed against the injunctive relief ordered by Stewart J. By order of the Court of Appeal made on the 21st June, 2019, Everyday Finance DAC were joined as a party to each of the appeals, having purchased the loan from the bank.
Held by McGovern J that the Angela Oman proceedings were a collateral attack on the order for possession of the property and were a clear abuse of process. In McGovern J’s view, the trial judge was correct in his conclusions that the plaintiff did not have an arguable case and that even if she did it would be defeated by a plea of acquiescence and delay. McGovern J held that the judgment of the High Court judge was based on a finding that Ms Oman did not have an arguable case; he did not appear to have approached the matter on the basis of abuse of process and the respondents’ grounds of opposition to the notice of appeal did not seek to cross-appeal in relation to the failure of the High Court judge to make a finding based on abuse of process. McGovern J held that, while it could not therefore be a basis for the court reaching a conclusion on the appeal, if there had been a cross-appeal on that basis he would have unhesitatingly found that the Angela Oman proceedings did constitute an abuse of process. McGovern J dismissed the appeal.
McGovern J held that, in the Bank proceedings, the High Court judge was in error in imposing a stay on the basis that there were insufficient reasons given for doing so, and there was no arguable ground of appeal. McGovern J found that the High Court judge did not address her mind to that issue; while she did say that she did not see any great prejudice to the bank and the receiver in staying the implementation of the injunction until the resolution of the appeal in the other proceedings she did not state why she took that view. McGovern J allowed the appeal of the bank and the receiver. McGovern J also dismissed the cross-appeal of Ms Oman against the granting of an injunction.
2018 272 Appeal dismissed, 2018 331 Appeal allowed and cross appeal dismissed.
Although these are two separate causes of action and appeals, they are inter-connected insofar as they both concern premises at 114-116, Capel Street, Dublin (“the property”) and both involve Angela Oman. As the parties have different roles in each of the appeals they will be referred to by name rather than as “appellant” and “respondent”. The proceedings bearing appeal number 2018/000272 shall be referred to as the “Angela Oman proceedings” and the appeal bearing record number 2018/000331 shall be referred to as the “Bank proceedings”. The appeal in the Angela Oman proceedings is against an order of O'Connor J. made on the 13th June, 2018 striking out the proceedings on the grounds that there was no bona fide reason for the continued prosecution of the proceedings against the first named respondent, who is her husband, and on the grounds that the proceedings against the second and third named respondents were frivolous and/or vexatious and that Angela Oman had no bona fide cause of action.
In the Bank proceedings, Allied Irish Banks plc (“the bank”) and Stephen Tennant (“the receiver”) are appealing a stay on an order made by Stewart J. on the 6th July, 2018. In her order, she granted the bank/receiver an injunction restraining Angela Oman or any persons with notice of the order from trespassing or entering or otherwise attending the premises known as 114/116, Capel Street, Dublin or any part thereof, and that she deliver up to the bank and receiver all keys, access codes, alarm codes on the 2nd floor of the property where she was residing. The High Court judge directed that these orders be stayed pending the determination of the Angela Oman proceedings. Angela Oman has cross-appealed against the injunctive relief ordered by Stewart J.
By order of the Court of Appeal made on the 21st June, 2019, Everyday Finance DAC were joined as a party to each of the appeals, having purchased the loan from the bank.
On 1st November, 1986, Angela Oman married James Oman. On the 18th October, 1988 James Oman purchased the properties 114/116, Capel Street, Dublin and a plot of ground on Angelsea Row abutting the rear of the Capel Street premises for the sum of IR£110,000. Angela Oman claims to have contributed IR£30,000.12 towards the purchase price. The premises 114/116 were commercial premises which contained an apartment at number 115. The Oman family lived there between 1988 and 1992 at which time James Oman purchased 15, Belgrave Square, Rathmines. Thereafter, 115, Capel Street remained vacant and was not rented or otherwise used as part of the commercial enterprise carried on at the premises. It is an essential part of the case made by Angela Oman that 115, Capel Street was separate and distinct from the property described as 114/116. No evidence has been offered to the High Court or this court to show that it was treated separately either when the property was purchased or when the property was offered as security for advances made to James Oman.
On the 2nd March, 2004 James Oman offered the premises 114/116, Capel Street as security for a loan of €1.2m. The loan was a commercial loan. On that date James Oman completed a family home declaration that 114/116, Capel Street was not a family home and that no person other than him had any interest in the property and that neither he nor any other family member ordinarily resided in the property or any part of it. He confirmed that the family resided at 15, Beigrave Square, Rathmines and that the property was acquired as a commercial investment. His statutory declaration stated inter alia “the property is not subject to any trust, licence, tenancy or proprietary interest in favour of any person or body corporate”.
On the 8th April, 2016 the bank (AIB) obtained judgment against James Oman for €1,622,649.75.
In due course, Stephen Tennant (“the receiver”) was appointed receiver over the property by deed of appointment dated the 26th March, 2015. As James Oman resisted the receivership and the bank's entitlement to secure possession it was necessary for the bank to issue further proceedings seeking an order for possession of the property (“the possession proceedings”).
The possession proceedings were listed for plenary hearing on the 21st November, 2017. James Oman was represented by solicitor and counsel. After the case had been opened to the trial judge (O'Connor J.), a settlement was reached between the parties in which James Oman consented to an order for possession in favour of the bank and the receiver. It was agreed that the order for possession be stayed until the 1st June, 2018. On the 15th October, 2017, shortly before the hearing of the possession proceedings, Angela Oman wrote to the bank's solicitors referring to the proceedings and stating her intention to initiate legal proceedings with regard to establishing an alleged interest in the property. This was the first time she had disclosed any purported interest in the property. The bank's solicitors advised her by return that the possession proceedings would proceed to hearing on the 21st November, 2017, the hearing date having been fixed in July of that year. Angela Oman did not initiate any proceedings at that time and did not attend court on the day of the hearing or make any representations in respect of an alleged interest in the property.
At the hearing, James Oman confirmed that his family members were aware of the proceedings and the court order records the fact that his family members were on notice of the existence of the possession proceedings.
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