Bank of Ireland Mortgage Bank v Kane

• Jurisdiction: Ireland
• Judge: Mr. Justice Meenan
• Judgment Date: 24 May 2019
• Neutral Citation: [2019] IEHC 421
• Docket Number: [2015 No. 1909 S]
• Court: High Court
• Date: 24 May 2019

[2019] IEHC 421

THE HIGH COURT

Meenan J.

[2015 No. 1909 S]

BETWEEN

BANK OF IRELAND MORTGAGE BANK

PLAINTIFF

AND

BRIAN KANE

DEFENDANT

Summary judgment – European Communities (Cancellation of Contracts Negotiated Away From Business Premises) Regulations 1989 – European Communities (Unfair Terms in Consumer Contracts) Regulations 1995 – Plaintiff seeking summary judgment – Whether the defendant had defences under the European Communities (Cancellation of Contracts Negotiated Away From Business Premises) Regulations 1989 and the European Communities (Unfair Terms in Consumer Contracts) Regulations 1995

Facts: The plaintiff, Bank of Ireland Mortgage Bank, sought summary judgment in the sum of €1,746,613.95 together with further interest. The said sum comprised three principle sums of €908,064.55, €590,106.54 and €189,452.09. The defendant, Mr Kane, in his replying affidavit, did not contest that the monies were advanced and had not been repaid in full. There had been a number of repayments over the years. In his defence, the defendant sought to rely upon: (i) Council Directive 85/577/EEC and the European Communities (Cancellation of Contracts Negotiated Away From Business Premises) Regulations 1989 (SI No. 224/1989); and (ii) Council Directive 93/13/EEC on Unfair Terms in Consumer Contracts and the European Communities (Unfair Terms in Consumer Contracts) Regulations 1995 (SI N0. 227/1995). The defendant issued a motion seeking a referral from the High Court to the Court of Justice of the European Union for a preliminary ruling as to “the applicability or otherwise of the Council Directive of the 20th December, 1985 to protect the consumer in respect of contracts negotiated away from business premises 85/577/EC), on these instant matters, and the agreement/s the subject matter of the hearing proceedings.”

Held by the High Court (Meenan J) that the defendant had fallen well short of establishing any sort of defence under the 1989 Regulations as would permit the Court to direct a plenary hearing on the issue. Meenan J was also satisfied that the defendant had no defence under the 1995 Regulations. He found that no referral was necessary to enable him to reach the decisions which he had made.

Meenan J held that the plaintiff was entitled to judgment for the sums sought.

Judgment granted.

JUDGMENT of Mr. Justice Meenan delivered on the 24th day of May, 2019

Introduction

1 Before the Court is the plaintiff's motion seeking summary judgment in the sum of 1,746,613.95 together with further interest. The said sum comprises three principle sums of €908,064.55, €590,106.54 and €189,452.09. The defendant describes himself as being a ‘pensioner’ and makes reference to his ill health in his replying affidavit. When the plaintiff advanced the said loans to the defendant in May 2007 he was, however, in business as an auctioneer and property developer and had an extensive property portfolio from which his income was derived.

Background to the Loans

2 In May 2007 the defendant wished to refinance certain facilities held by him with EBS Building Society, Irish Nationwide Building Society and Permanent TSB and to release the equity held in certain properties owned by the defendant.

3 The plaintiff issued two offer letters to the defendant on 24 May 2007. The first loan offer letter offered to provide the defendant with a facility in the sum of €1,230,000 repayable over fifteen years (‘number one loan account’). The second loan offer letter of 24 May 2007 offered to provide the defendant with a further facility in the sum of €680,000 repayable again over fifteen years (‘number two loan account’). Subsequently, on 3 April 2008, the plaintiff issued a third loan offer letter offering to provide the defendant a further facility in the sum of €250,000 repayable over fifteen years (‘number three loan account’).

4 All three loans referred to were secured by way of mortgage over some sixteen properties owned by the defendant. It should be noted that none of these properties comprise the family home of the defendant.

5 The defendant made payments in respect of each of the loan accounts in the period up until 1 February 2019 and the position as of 26 February 2019 is as follows:-

(i) For balance principle on the number one loan account €908,064.55;

(ii) For balance principle on the number two loan account €590,106.54;

(iii) For balance principle on the number three loan account €189,452.09.

Details concerning these repayments were set out in affidavits, sworn on behalf of the plaintiff, by Mr. Sean Buckley and Mr. Emmet Pullan,

6 A receiver has been appointed by the plaintiff over three of the sixteen properties securing the said loans. In his affidavit, Mr. Buckley refers to the receiver reporting ongoing interference with the receivership. This interference concerns non-payment of rent and unauthorised tenancies. It should be noted that any issues in relation to the receivership do not form part of these proceedings.

Defences raised by the defendant

7 The defendant, in his replying affidavit, does not contest that the monies were advanced and have not been repaid in full. As noted, there have been a number of repayments over the years. In his defence, the defendant further seeks to rely upon: -

(i) Council Directive 85/577/EEC and the European Communities (Cancellation of Contracts Negotiated Away From Business Premises) Regulations 1989 ( SI No. 224/1989) (‘the Doorstep Selling Directive’)

(ii) Council Directive 93/13/EEC on Unfair Terms in Consumer Contracts and the European Communities (Unfair Terms in Consumer Contracts) Regulations 1995 (SI N0. 227/1995).

Principles to be Applied

8 There is no dispute, as noted earlier in this judgment, by the defendant that the monies were advance and were not repaid. Indeed, a number of repayments have been made over the years. The defendant instead seeks to rely upon the legal points set out in the previous paragraph. As to the jurisdiction of the Court in such circumstances, I refer to the following passage from Clarke J. (as he was then), at p. 210, in McGrath v O'Driscoll & Others [2007] 1 ILRM 203: -

‘Insofar as questions of law or construction are concerned the court can, on a motion for summary judgment, resolve such questions (including, where appropriate, questions of the construction of documents), but should only do so where the issues which arise are relatively straightforward and where there is no real risk of an injustice being done by determining those questions within the somewhat limited framework of a motion of summary judgment’

I am satisfied that this is a case that can be dealt with in an application for summary judgment in that the issues raised by the defendant are relatively straightforward and the Court has available to it a number of authorities on the points raised and thus I do not see that there will be any injustice to the defendant.

‘Doorstep Selling Regulations’

9 I refer to the European Communities (Cancellation of Contracts Negotiated away from Business Premises) Regulations 1989 ( SI No. 224/1989) wherein consumer was defined in Art. 2(1) as:-

‘a natural person who, in transactions covered by these regulations, is acting for purposes which can be regarded as outside his trade or profession’

Article 3 provides: -

‘(1) These regulations apply –

(a) to contracts under which a trader supplies goods or services to a consumer and which are concluded –

(i) during an excursion organised by the trader away from his business premises, or

(ii) during a visit by a trader –

(I) to the consumer's home or to that of another consumer, or

(II) to the consumer's place of work,

where the visit does not take place at the express request of the...