Beltany Property Finance dac v Doyle

• Jurisdiction: Ireland
• Judge: Mr. Justice Allen
• Judgment Date: 14 May 2019
• Neutral Citation: [2019] IEHC 307
• Docket Number: [2018 No. 1884 P.]
• Court: High Court
• Date: 14 May 2019

BETWEEN

BELTANY PROPERTY FINANCE DESIGNATED ACTIVITY COMPANY

PLAINTIFF

AND

JOSEPH DOYLE

DEFENDANT

[2019] IEHC 307

[2018 No. 1884 P.]

THE HIGH COURT

Trespass – Interlocutory injunction – Bona fide issue to be tried – Plaintiff seeking an interlocutory injunction restraining trespass to land – Whether the defendant had established a bona fide issue to be tried as to whether he was in occupation without permission

Facts: The plaintiff, Beltany Property Finance dac, applied to the High Court for an interlocutory injunction restraining trespass to land. The plaintiff’s case was that it was the successor in title to a bank which funded the purchase of the property in 2006 by way of loan secured by a charge over the property, that the mortgagor had failed to pay the loan, that the mortgagor had surrendered the property, and that it was entitled to possession to realise its security. The case of the defendant, Mr Doyle, was that he had been in continuous adverse possession of the property since 2004.

Held by Allen J that the defendant had an arguable case to make that he was in possession of the property from 2004 but not, crucially, that he had established a bona fide issue to be tried as to whether he was so in occupation without permission. Absent any bona fide issue which would engage the Campus Oil principles, Allen J held that the plaintiff was entitled to an interlocutory injunction ex debito justiciae.

Allen J held that there would be an order, pending the trial of the action, directing the defendant to deliver up to the plaintiff any keys, alarm codes, locks and all other security and access devices in respect of the property at 5 Meakestown Cottages, Finglas, Dublin 11, and restraining the defendant, whether by himself, his servants or agents, or otherwise from trespassing upon, entering upon or otherwise attending at the property.

Application granted.

JUDGMENT of Mr. Justice Allen delivered on the 14th day of May, 2019

Introduction

1 This is an application for an interlocutory injunction restraining trespass to land. The plaintiff's case is that it is the successor in title to a bank which funded the purchase of the property in 2006 by way of loan secured by a charge over the property, that the mortgagor has failed to pay the loan, that the mortgagor has surrendered the property, and that it is entitled to possession to realise its security.

2 The defendant's case is that he has been in continuous adverse possession of the property since 2004.

The evidence

3 By letter of offer of mortgage loan dated 28th June, 2006 Allied Irish Banks plc and AIB Mortgage Bank made available to Thomas McFeely a mortgage loan in the sum of €270,000 repayable over twenty years to allow Mr. McFeely to purchase a bungalow at 5 Meakstown Cottages, Finglas, Dublin 11. That offer was duly accepted on 18th July, 2006 and the loan was drawn down on the undertaking of Woods Hogan & Co., solicitors, in the usual form, to ensure good and marketable title and the execution by the borrower of a first charge over the property. Mr. McFeely duly executed a charge which on 5th December, 2007 was registered as a burden on folio 180716F Co. Dublin. On the same day, Mr. McFeely was registered as full owner of the property.

4 On 14th January, 2009 Woods Hogan & Co. provided to Allied Irish Banks plc and AIB Mortgage Bank a certificate of title in the usual Law Society approved form.

5 Mr. McFeely was adjudicated a bankrupt in 2012 and on 30th July, 2012 the Official Assignee was registered as full owner. In Mr. McFeely's bankruptcy Allied Irish Banks plc claimed to be owed €156,444.12. There were insufficient funds to warrant a proof of debt sitting but the Official Assignee offered to surrender the property on proof of Mr. McFeely's interest and the bank's security. On 17th August, 2015 the Official Assignee executed a deed of voluntary surrender of the property in favour of Allied Irish Banks plc.

6 By a Global Deed of Transfer and an Irish Law Deed of Transfer, both dated 30th June, 2017, made between Allied Irish Banks plc., AIB Mortgage Bank, EBS Designated Activity Company and Haven Mortgages Limited, and Beltany Property Finance Designated Activity Company, the banks” interest in the loan to Mr. McFeely and the security held in connection with it were transferred to the plaintiff, and on 15th September, 2017 the plaintiff was registered on folio as the owner of the charge.

7 From enquiries made by the bank in 2015 and 2016, the plaintiff knew that the property was, or at least on the dates on which the enquires had been made had been, occupied, and the plaintiff set about establishing the up to date position.

8 By letter dated 19th September, 2017 O'Dwyer Property Management Limited wrote to the occupier of the property. They did not identify their principal. They asserted, on the one hand, that the occupier had no authority to be occupying the property, and on the other invited the occupier to provide proof of a valid lease agreement. It was said that a locksmith would attend on 22nd September, 2017 to secure the property.

9 By letter dated 20th September, 2017 Tom Collins & Company, solicitors, replied on behalf of the defendant. They identified their client as Joe Doyle who, it was said, had been residing in the property for many years and had acquired title to same. The solicitors conveyed their instructions that Mr. Doyle had never had any contact, ever, from anyone, claiming ownership of the property.

10 By letter dated 20th October, 2017 Gore & Grimes, solicitors for the plaintiff asserted that Tom Collins & Company had not set out any legal basis as to how the defendant had allegedly acquired any interest in the property and reiterated the demand for possession.

11 By letter dated 26th October, 2017, Tom Collins & Company challenged Gore & Grimes (not unreasonably) to set out the basis upon which the plaintiff demanded possession, and went on to set out the defendant's stall. The defendant, it was said, first started using part of the property in 2002 and entered into sole and exclusive beneficial occupation of the entire property in 2004. The property, it was said, had been abandoned at that time and was in poor condition and the defendant had spent ‘significant’ money maintaining and restoring the property to a habitable condition. The defendant had also, it was said, improved the property by building a pigeon loft in 2005 and a prayer house in about 2013. The letter continued: -

‘Until receipt of the letter from O'Dywer Real Estate Management dated 19th September, 2017, our client had not received any communication or contact from any person or agent of such person purporting to have any claim or interest in the property. Our client has not at any time given any acknowledgment in favour of any person of any entitlement or interest in the property’.

12 The plaintiff's solicitors made further enquires with AIB Bank and were provided with a copy of a valuation dated 24th July, 2006, written in the context of Mr. McFeely's loan application, which valued the property at €400,000. The property was described, inside and out, as in good condition and a photograph was appended to the valuation report.

13 In a letter of 23rd January, 2018 the plaintiff's solicitors summarised the making of the loan to Mr. McFeely, the purchase of the property by Mr. McFeely, and the plaintiff's later acquisition of the loan and security.

14 In letter of 29th January, 2018 the defendant, by his solicitors, reiterated his position and declared that he had never given permission for any valuation and that he was at a loss to understand how the valuation had been carried out.

15 The story so far, then, is that the owners of this house, having abandoned it in or before 2004, returned in 2006 and managed to sell it (much improved) for at least €270,000 to Mr. McFeely, without any contact by the vendors, the purchaser, or any estate agent or valuer, with the defendant who had been squatting in it for two years. Surprising as this might be, the story (as counsel for the plaintiff submits) gets curiouser and curiouser.

16 The plaintiff's solicitors did some further digging and turned up a number of documents which showed, they thought, that prior to the sale to Mr. McFeely, the defendant had attempted to purchase the property. Those documents were a letter of 23rd November, 2005 from O'Reilly Doherty & Co., solicitors, to Woods Hogan & Co.; an undated contract for the sale and purchase of the property; and a copy of requisitions on title and replies dated 20th April, 2006.

17 In the letter of 23rd November 2005, O'Reilly Doherty & Co. identified their client as David Boyle and Nicola Boyle and Woods Hogan & Co.'s client as Joseph Doyle. Mr. and Mrs. Boyle were said to be most anxious to progress a sale of the property to Joseph Doyle, and Woods Hogan & Co. were asked to return executed contracts, a draft deed, and requisitions on title, by return.

18 The requisitions on title identified David Boyle and Nicola Boyle as vendor, Joseph Doyle as purchaser, and the property as 5, Meakstown Cottages, Dubber Cross, Dublin 11. By requisition 8, the purchaser's solicitors had sought the usual confirmation that clear vacant possession of the entire property would be handed over on closing: which was confirmed.

19 The undated contract identified the property and showed a purchase price of €300,000, a deposit of €30,000, and a balance of €270,000. The contract was signed by Thomas McFeely in the presence of a solicitor in Woods Hogan & Co. but had been prepared and printed in the expectation that the purchaser would be Joseph Doyle.

20 Copies of these documents, as well as Woods Hogan & Co.'s certificate of Mr. McFeely's title dated 14th February, 2009 were provided to Tom Collins & Co. under cover of a letter dated 23rd February, 2018 in which the plaintiff's solicitors...