Appleridge Developments Ltd v Ní Ghruagáin

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 23 May 2019
• Neutral Citation: [2019] IESC 34
• Docket Number: [Appeal Nos: 148/2010, 149/2010]
• Court: Supreme Court
• Date: 23 May 2019

Between/

Appleridge Developments Limited

Plaintiff/Respondent

and

Treasa Ní Ghruagáin

Defendant/Appellant

[2019] IESC 34

[Appeal Nos: 148/2010, 149/2010]

THE SUPREME COURT

Special summons proceedings – Sale of lands – Default of payment – Appellant seeking to appeal two orders of the High Court in special summons proceedings issued by the respondent – Whether the High Court judge was in error in the decisions reached and orders made

Facts: The defendant/appellant, Ms Ní Ghruagáin, sought to appeal two orders of the High Court (McGovern J) made on 12 April 2010, in special summons proceedings issued by the plaintiff/respondent, Appleridge Developments Ltd, on 11 November 2008. The special summons proceedings sought declarations that, by virtue of two judgment mortgages stated to have been registered against the interest of the appellant in the lands and premises comprised in Folios 13018F and 12141, County Dublin on 7 December 2005, to secure (1) the repayment of €66,479.11, being the amount of a judgment representing taxed costs pursuant to an order of the Court dated 13 December 2002 and a certificate of taxation of 21 December 2004, in judicial review proceedings and (2) the repayment of €31,136.06, representing taxed costs on an order of the Court dated 19 June 2003 and a certificate of taxation dated 21 December 2004 in the same proceedings, together with interest in respect of each sum, the principal moneys secured thereby stood well charged on the aforementioned lands. The summons also sought, inter alia, an order for sale in default of payment. The first order made by the High Court on 12 April 2010 and appealed against was an order declaring each of the judgments well charged and orders in default of payment for the sale of the lands identified as sought on the special summons. The second order made by the High Court on 12 April 2010 was an order refusing reliefs sought by the appellant on a motion issued by her on 13 November 2009 in the special summons proceedings.

Held by the Supreme Court (Finlay Geoghegan J) that the appellant had been granted several adjournments of the special summons proceedings in the High Court, during which no steps were taken to seek leave to apply for judicial review to challenge the certificates of taxation. Finlay Geoghegan J did not consider that the High Court judge was in error in those circumstances in proceeding to hear the special summons in April 2010, notwithstanding that the affidavits contained averments which indicated a potential lack of fair procedures before the Taxing Master; further he was not in error in the decisions reached and orders made.

Finlay Geoghegan J held that the appeals would be dismissed.

Appeals dismissed.

Judgment of Ms. Justice Finlay Geoghegan delivered on the 23rd day of May, 2019.

1 The appellant, Ms. Ní Ghruagáin, seeks to appeal two orders of the High Court (McGovern J.) made on 12 April 2010, in special summons proceedings [2008 No. 1069 Sp] issued by the plaintiff, Appleridge Developments Limited (‘Appleridge’), on 11 November 2008.

2 The special summons proceedings sought declarations that, by virtue of two judgment mortgages stated to have been registered against the interest of the appellant in the lands and premises comprised in Folios 13018F and 12141, County Dublin on 7 December 2005, to secure (1) the repayment of €66,479.11, being the amount of a judgment representing taxed costs pursuant to an order of the Court dated 13 December 2002 and a certificate of taxation of 21 December 2004, in judicial review proceedings 2001 No. 700JR and (2) the repayment of €31,136.06, representing taxed costs on an order of the Court dated 19 June 2003 and a certificate of taxation dated 21 December 2004 in the same proceedings, together with interest in respect of each sum, the principal moneys secured thereby stood well charged on the aforementioned lands. The summons also sought, inter alia, an order for sale in default of payment.

3 The first order made by the High Court on 12 April 2010 and appealed against was an order declaring each of the judgments well charged and orders in default of payment for the sale of the lands identified as sought on the special summons.

4 The second order made by the High Court on 12 April 2010 was an order refusing reliefs sought by the appellant on a motion issued by her on 13 November 2009 in the special summons proceedings.

Background Facts and Prior Proceedings

5 The background facts and prior proceedings and procedural steps taken by the parties in different sets of proceedings prior to the hearing of the appeal in which this judgment is delivered are complex and require to be set out in some detail. In 2001, the appellant applied for leave to commence judicial review proceedings against An Bord Pleanála, to which Appleridge was a notice party. Leave was sought for the purpose of quashing certain decisions of An Bord Pleanála in relation to a proposed development by Appleridge.

6 By order of 13 December 2002, leave was refused by the High Court (Murphy J.) and Appleridge was granted an order for costs against the appellant, such costs to be taxed in default of agreement.

7 The appellant then applied for leave to appeal to the Supreme Court and for a reference pursuant to Article 234 of the EC Treaty. By order of 19 June 2003, the High Court (Murphy J.) refused both applications and a further order for costs was made in favour of Appleridge against the appellant. In those judicial review proceedings, the appellant was represented by Casey & Co Solicitors.

8 Bills of costs were served on behalf of Appleridge on Casey & Co. Solicitors for the appellant and a date was fixed for taxation of 9 November 2004. In October 2004, the appellant became aware that Appleridge was struck of the Register of Companies and brought it to the attention of her solicitor.

9 On 9 November 2004, when the taxation was listed for hearing there was no appearance by the appellant and it did not proceed, it appears by reason of the fact that the cost accountant for Appleridge was not in a position to proceed. The appellant contends that she had handed into the Office of the Taxing Master a document indicating that Appleridge was dissolved and that she had been informed by Taxing Master Moran that if she did that, the taxation hearing would not proceed.

10 On 10 November 2004, the taxation hearing took place. It now appears on the evidence before this Court that the cost accountant for Appleridge, had been informed by the solicitor for the appellant that the appellant intended to appear and also had been made aware of the fact that Appleridge was struck off the Register of Companies. The taxation was heard by Taxing Master Flynn in the presence of the cost accountant for Appleridge and there is no evidence that he was informed of either of those facts.

11 On 16 December 2004, Appleridge was restored to the Register of Companies by the Registrar of Companies.

12 On 21 December 2004, certificates of taxation issued in respect of the orders for costs made on 13 December 2002 and 19 June 2003.

13 On 30 November 2005, affidavits of Ivon Keeling, company secretary of Appleridge, sworn on 8 November 2005, were filed in the Central Office of the High Court registering each of the judgments as a judgment mortgage over the two folios in Co. Dublin already identified.

14 The said folios indicate that on 7 December 2005, the judgment mortgage affidavits were filed on each of the folios. The registrations are stated to have been completed on 21 December 2005.

Special Summons Proceedings

15 Appleridge issued the special summons already referred to on 11 November 2008. It was grounded on an affidavit of Mr. Keeling, sworn on 14 November 2008. In that affidavit, Mr. Keeling refers to the High Court orders for costs of 13 December 2002 and 19 June 2003. He then states in respect of each that ‘on the 21st day of December, 2004 the Taxing Master… taxed the Plaintiff's costs’ and refers to the certificates of taxation, both dated 21 December 2004, and the amount of each. He also exhibits copies of the affidavits sworn by him to register each judgment as a judgment mortgage, which are stamped as filed in the Central Office on 30 November 2005. Finally, he exhibits copies of the Folios 13018F and 12141, County Dublin, which show the registration of the judgment mortgage affidavits of Mr. Keeling filed on 7 December 2005 and that the appellant is registered as the full owner of each. In the case of Folio 13108F, it is in the English version of her name as deposed to by Mr. Keeling. It is not in dispute that the appellant is the registered owner of each of the folios. Mr. Keeling also deposes to the fact that the amounts due on the judgments remain unpaid and that a sale is required to discharge the sums due to Appleridge.

16 The next step in the proceedings was an application for substituted service, which was grounded on an affidavit of Sharon Devine, solicitor for Appleridge, and sworn on 26 February 2009. She set out the attempts made to serve the appellant at an identified property, at which she had been informed by a private investigator that the appellant was believed to be residing. On 2 March 2009, an order for substituted service by ordinary prepaid post was made by the High Court (Peart J.).

17 On 23 March 2009, the appellant entered an appearance to the special summons. The appellant swore one affidavit in response to the summons on 15 May 2009. The appellant deposed to the fact that Appleridge was struck off by the Companies Registration Office on 19 December 2003 for non-filing of returns since its incorporation on 5 April 2000 and that it filed the required returns on 16 December 2004.

18 She then states that an application to tax costs was made to the Office of the Taxing Master by Appleridge, with taxation by Lords Legal Cost Accountants,...