Beltany Property Finance DAC v Pepper Finance Corporation (Ireland) DAC

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 14 October 2021
• Neutral Citation: [2021] IECA 256
• Court: Court of Appeal (Ireland)
• Docket Number: Record No. 2020/257

Between/

Beltany Property Finance DAC

Plaintiff

and

Pepper Finance Corporation (Ireland) DAC

Respondent

and

Jerry Beades

Defendant/Appellant

[2021] IECA 256

Whelan J.

Ní Raifeartaigh J.

Binchy J.

Record No. 2020/257

THE COURT OF APPEAL

Possession of property – Conveyance – O.17, r.4 of the Rules of the Superior Courts 1986 – Pepper Finance Corporation (Ireland) DAC seeking to be named as the sole plaintiff in the proceedings – Whether there had been a transfer or transmission of interest in the properties such as to entitle Pepper Finance Corporation (Ireland) DAC to an order under O.17, r.4 of the Rules of the Superior Courts 1986

Facts: The High Court (Dunne J), on 23rd June 2008, made orders directing the appellant, Mr Beades, to deliver up possession of the two premises known as 31 Richmond Avenue, Fairview, Dublin and 21 Little Mary Street, Dublin respectively (the Properties). The appellant appealed the judgment of Dunne J to the Supreme Court, which dismissed the appeal in a decision handed down on 12th November 2014. By Deed of Conveyance and Assignment dated 7th August 2020, the plaintiff, Beltany Property Finance DAC (Beltany), granted, conveyed, assigned, transferred and assured to Pepper Finance Corporation (Ireland) DAC (Pepper), all of its right, title, estate, interest, benefit and obligations in the properties described therein (which included the Properties) and the mortgage (executed by the appellant) over the Properties. Pursuant to a separate Global Deed of Assignment, Beltany transferred, conveyed and assigned to Pepper, inter alia, the legal estate in the loan facilities (originally advanced by IIB Home Loans Ltd to the appellant), including the loan facility, facility letter and mortgage relating to the Properties. Beltany had in turn acquired its interest in the Properties, the loan facility, facility letter and mortgage from KBC Bank Ireland plc which in turn had succeeded to IIB Home Loans Ltd. On 8th October 2020 Pepper issued a motion in the High Court seeking the following orders: (a) an order pursuant to O.17, r.4 of the Rules of the Superior Courts 1986 and/or pursuant to the inherent jurisdiction of the High Court naming Pepper as the sole plaintiff in the proceedings; (b) an order pursuant to O.42, r.24(a) of the Rules and/or pursuant to the inherent jurisdiction of the High Court granting Pepper liberty to issue execution on foot on the order of Dunne J dated 23rd June 2008; and (c) an order pursuant to O.28, r.12 of the Rules and/or pursuant to the inherent jurisdiction of the High Court amending the said order of the High Court dated 23rd June 2008 so as to name Pepper as the plaintiff in the title to the proceedings, in place of the respondent. In an ex tempore decision handed down on 18th November 2020, the High Court (Twomey J) granted the orders sought. The appellant appealed to the Court of Appeal against that decision.

Held by Binchy J that the decision of Whelan J was determinative of the appeal so far as concerned that part of the decision of the trial judge as related to the application advanced under O.17, r.4. Binchy J held that the judgment of Whelan J made it clear that she was satisfied that, on the balance of probabilities, there had been a transfer or transmission of interest in the Properties (and the mortgage over the Properties) such as to entitle Pepper to an order under O.17, r.4. Binchy J held that the only distinction between the application addressed by Whelan J in her judgment and the application before the trial judge was that the latter was an application to appoint Pepper as sole plaintiff in the proceedings, whereas the former was an application to have Pepper joined as a co-respondent for the limited purpose of the two appeals then before the Court. Binchy J held that this distinction had no bearing upon the question of transmission of interest in the Properties, which fell to be determined on each application having regard to the same principles. That being so, and since the objections raised by the appellant to each application were, on their own case, the same, Binchy J held that the appeal from the order made by the High Court pursuant to O.17, r.4 must be dismissed. Binchy J concluded that in practical terms, the appellant was relying upon succeeding with his appeal against the order made under O.17, r.4 for the purpose of having the other orders set aside. That being the case, Binchy J held that the appellant’s appeal against those orders must also be dismissed.

Binchy J held that the costs of the appeal should follow the event and that the appellant should pay the costs of Pepper, to be adjudicated in default of agreement.

Appeal dismissed.

UNAPPROVED

NO REDACTION NEEDED

JUDGMENT of Mr. Justice Binchy delivered on the 14th day of October 2021

1 . This is yet another chapter in a saga dating back as far as 23 ^rd June 2008 when the High Court (Dunne J.) made orders directing the appellant to deliver up possession of the two premises known as 31 Richmond Avenue, Fairview, Dublin and 21 Little Mary Street, Dublin respectively (the “Properties”). The appellant appealed the judgment of Dunne J. to the Supreme Court, which dismissed the appeal and affirmed the orders made by Dunne J., in a decision handed down on 12 ^th November 2014. There have been numerous other orders and appeals from orders within these proceedings, and it is hard to disagree with the observation made by counsel for the respondent, at the hearing of this appeal, that the proceedings have become Jarndycian in character. In any case, this judgment is concerned with just one small development that took place more than twelve years after the orders for possession made by Dunne J., when, by Deed of Conveyance and Assignment dated 7 ^th August 2020 (the “Deed”), the plaintiff (“Beltany”) did grant, convey, assign, transfer and assure to Pepper Finance Corporation (Ireland) DAC (“Pepper”) all of its right, title, estate, interest, benefit and obligations in the properties described therein (which include the Properties) and the mortgage (executed by the appellant) over the Properties. On the same day, pursuant to a separate Global Deed of Assignment, Beltany transferred, conveyed and assigned to Pepper, inter alia, the legal estate in the loan facilities (originally advanced by IIB Home Loans Limited to the appellant), including the loan facility, facility letter and mortgage relating to the Properties. Beltany had in turn acquired its interest in the Properties, the loan facility, facility letter and mortgage from KBC Bank Ireland plc which in turn had succeeded to IIB Home Loans Limited.

2 . Arising out of the conveyance of the Properties by Beltany to Pepper, on 8 ^th October 2020 Pepper issued a motion in the High Court seeking the following orders:

• (a) An Order pursuant to O.17, r.4 of the Rules of the Superior Courts 1986 and/or pursuant to the inherent jurisdiction of the High Court naming Pepper as the sole plaintiff in these proceedings;

• (b) An Order pursuant to O.42, r.24(a) of the Rules of the Superior Courts 1986 and/or pursuant to the inherent jurisdiction of the High Court granting Pepper liberty to issue execution on foot on the order of the High Court (Dunne J.) dated 23 ^rd June 2008; and,

• (c) An Order pursuant to O.28, r.12 of the Rules of the Superior Courts 1986 and/or pursuant to the inherent jurisdiction of the High Court amending the said order of the High Court dated 23 ^rd June 2008 so as to name Pepper as the plaintiff in the title to these proceedings, in place of the respondent.

3 . Order 17, rule 4 of the Rules of the Superior Courts (“RSC”) provides:

“4. Where by reason of death, or any other event occurring after the commencement of a cause or matter and causing a change or transmission of interest or liability, or by reason of any person interested coming into existence after the commencement of the cause or matter, it becomes necessary or desirable that any person not already a party should be made a party, or that any person already a party should be made a party in another capacity, an order that the proceedings shall be carried on between the continuing parties, and such new party or parties, may be obtained ex parte on application to the Court upon an allegation of such change, or transmission of interest or liability, or of such person interested having come into existence.”

4 . Order 42, rule 24(a) RSC provides:

“(a) where six years have elapsed since the judgment or order, or any change has taken place by death or otherwise in the parties entitled or liable to execution; … the party alleging himself to be entitled to execution may apply to the Court for leave to issue execution accordingly.”

5 . Order 28, rule 12 RSC provides:

“12. The Court may at any time, and on such terms as to costs or otherwise as the Court may think just, amend any defect or error in any proceedings, and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceedings.”

6 . The motion came on for hearing before the High Court (Twomey J.) on 18 ^th November 2020 and in an ex tempore decision handed down on that date, Twomey J. granted the orders sought. At the time that the application proceeded before Twomey J., there was a judgment pending before this Court on an almost identical application made directly to this Court in these same proceedings. While I address that in more detail below, I mention it now so as to explain that counsel for the appellant objected to this application proceeding in the court below on the grounds that the High Court was being asked to make “the same decision as is under consideration by the Court of Appeal”. He informed the trial judge that objections had been made before the Court of Appeal in relation to the proofs regarding the manner of execution of the Deed, which had been...