Bula Ltd v Crowley

JurisdictionIreland
JudgeDenham J.
Judgment Date13 February 2003
Neutral Citation[2003] IESC 10
CourtSupreme Court
Docket Number[S.C. Nos. 90, 93 and 95 of 2002]
Date13 February 2003
BULA LTD & ORS v. CROWLEY & ORS
Appeals
BETWEEN/
BULA LIMITED (IN RECEIVERSHIP), BULA HOLDINGS,THOMAS C. ROCHE, THOMAS J. ROCHE, RICHARD WOOD AND MICHAEL WYMES.
Plaintiffs/Appellants

and

LAURENCE CROWLEY NORTHERN BANK FINANCE CORPORATION LIMITED ULSTER INVESTMENT BANK LIMITED ALLIED IRISH INVESTMENT BANK LIMITED AND MacKAY and SCHNELLMANN LIMITED
Defendants/Respondents

[2003] IESC 10

Denham J.

Murray J.

McGuinness J.

Nos. 90/2002; 93/2002 and 95/2002

THE SUPREME COURT

Synopsis:

COMPANY LAW

Receivership

Statute of Limitations - Adverse possession - Whether defendants" claims statute barred - Whether title extinguished - Whether trial judge had failed to give adequate reasons - Whether trial judge had erred in law in refusing to allow amendment of points of claim - Statute of Limitations, 1957 (90; 93 & 95/2002 - Supreme Court - 13/2/2003) - [2003] 1 IR 396 - [2003] 2 ILRM 401

Bula v Crowley

Three appeals were considered in the judgment. The appeals were part of a long line of litigation, stretching over nearly two decades. In essence, Bula borrowed money from banks and the borrowing was secured by a number of mortgages. Repayments were not made and the banks appointed a receiver over the secured property. The High Court rejected the plaintiffs' contention that the banks' claims against Bula had been extinguished by time and also rejected the plaintiffs' claim based on adverse possession. The plaintiffs appealed and further argued that the High Court judge had failed to give adequate reasons and had erred in law in refusing to allow amendments to the points of claim and in disallowing further discovery.

Held by the Supreme Court (Denham J., nem. diss.) in dismissing the first appeal and making no orders to vary and also dismissing the second and third appeals that the Statute of Limitations, 1937 did not apply in the circumstances of the case. There was no adverse possession contrary to the owner. The High Court was correct in refusing the proposed amendments.

Citations:

RSC O.123 r3

STATUTE OF LIMITATIONS ACT 1957 S33

STATUTE OF LIMITATIONS ACT 1957 S38

STATUTE OF LIMITATIONS ACT 1957 S36(1)

STATUTE OF LIMITATIONS ACT 1957 S37(1)

STATUTE OF LIMITATIONS ACT 1957 S18(1)

STATUTE OF LIMITATIONS ACT 1957 S24

STATUTE OF LIMITATIONS ACT 1957 S32(2)

STATUTE OF LIMITATIONS ACT 1957 S36

STATUTE OF LIMITATIONS ACT 1957 S37

STATUTE OF LIMITATIONS ACT 1957 S32(2)(A)

STATUTE OF LIMITATIONS ACT 1957 S36(1)(A)

STATUTE OF LIMITATIONS ACT 1957 S2(1)

STATUTE OF LIMITATIONS ACT 1957 S2(6)

STATUTE OF LIMITATIONS ACT 1957 S10

STATUTE OF LIMITATIONS ACT 1957 S13(2)

STATUTE OF LIMITATIONS ACT 1957 S13(2)(A)

STATUTE OF LIMITATIONS ACT 1957 S13(2)(B)

STATUTE OF LIMITATIONS ACT 1957 S18(3)

STATUTE OF LIMITATIONS ACT 1957 S20(A)

STATUTE OF LIMITATIONS ACT 1957 S34(1)(A)

STATUTE OF LIMITATIONS ACT 1957 S53

STATUTE OF LIMITATIONS ACT 1957 S63

TOUHY V COURTNEY 1994 3 IR 1

HOWARD V COMMISSIONERS OF PUBLIC WORKS 1994 1 IR 101

HIBERNIAN BANK V YOURELL 1916 1 IR 312

YOURELL V HIBERNIAN BANK 1918 AC 372

HIBERNIAN BANK B YOURELL (NO 2) 1919 IR 310

PERRY V WOODFARM HOMES LTD 1975 IR 104

DPP (IVERS) V MURPHY 1999 1 IR 98

GOODEN V WATERFORD REGIONAL HOSPITAL UNREP SUPREME 21.2.2001 2001/11/2896

CONVEYANCING & LAW OF PROPERTY ACT 1881 S24(8)(i)

CONVEYANCING & LAW OF PROPERTY ACT 1881 S24(8)(ii)

CONVEYANCING & LAW OF PROPERTY ACT 1881 S24(8)(iii)

COMPANIES ACT 1963 S285

CONVEYANCING & LAW OF PROPERTY ACT 1881 S19

CONVEYANCING & LAW OF PROPERTY ACT 1881 S21

CONVEYANCING & LAW OF PROPERTY ACT 1881 S22

CONVEYANCING & LAW OF PROPERTY ACT 1881 S23

CONVEYANCING & LAW OF PROPERTY ACT 1881 S24

CONVEYANCING & LAW OF PROPERTY ACT 1881 S20

CONVEYANCING ACT 1911

GOMBA HOLDINGS V MINORIES FINANCE 1989 BCLC 115

MAGADI SODA CO LTD, RE 1925 41 TLR 297

ROTTENBERG & ORS V MONJACK & ANOR 1993 BCLC 374

IRISH OIL & CAKE MILLS LTD DONNELLY UNREP COSTELLO 27.03.1983 1986/6/798

ARDMORE STUDIOS (IRL) LTD V LYNCH & ORS 1965 IR 1

JOHNSON & CO (BUILDERS), RE 1955 1 CH 634

MURPHY V MURPHY 1980 IR 183

TRELOAR V NUTE 1976 1 WLR 1295

LORD ADVOCATE V LORD LOVAT 1880 5 AC 273

MOSES V LOVEGROVE 1952 2 QB 533

HUGHES V GRIFFIN 1969 1 WLR 23

BULA LTD, RE 1990 1 IR 440

WYMES V CROWLEY UNREP MURPHY 27.2.1987 1987/4/1221

FRANKS LIMITATION OF ACTIONS 1959 161

PICARDA THE LAW RELATING TO RECEIVERS, MANAGERS & ADMINISTRATORS 2ED 1995 266

FISHER & LIGHTWOOD LAW OF MORTGAGES 11ED 2002 PARA 16.34

IRISH TRUST BANK LTD V CENTRAL BANK OF IRELAND 1976–1977 ILRM 50

IRISH LAND COMMISSION V RYAN & ORS 1900 2 IR 565

BAULK V IRISH NATIONAL INSURANCE COMPANY LTD 1969 IR 66

1

13th day of February, 2003 by Denham J. [NEM DISS]

1. Litigation
2

Three appeals are considered in this judgment. These appeals are part of a long line of litigation, stretching over nearly two decades, between the parties. These matters were at hearing before the High Court for in excess of 26 days. The main action to which these appeals relate was commenced in 1986 and has not yet come to trial in the High Court. The first appeal considered in this judgment is a preliminary issue raised in the main action.

2. First Appeal
3

The first appeal is an appeal by plaintiffs/appellants, hereinafter referred to as the plaintiffs, from the judgment of the High Court (Barr J.) delivered on the 1 st day of February, 2002. In addition, Laurence Crowley, the first named defendant/respondent, has served a notice to vary. The Northern Bank Finance Corporation Limited, Ulster Investment Bank Limited and Allied Irish Investment Bank Limited, the second, third and fourth defendants/respondents, have also served notices to vary.

3. Parties
4

The parties in this action are as follows: (a) the first named plaintiff/appellant is Bula Limited (In Receivership), hereinafter referred to as Bula; (b) the second named plaintiff/appellant is Bula Holdings, hereinafter referred to as Holdings; (c) the third named plaintiff/appellant Thomas C. Roche died in 1999; (d) the fourth named plaintiff/appellant is Thomas J. Roche is no longer a party in the litigation; (e) the fifth named plaintiff/appellant is Richard Wood; (f) the sixth named plaintiff/appellant is Michael Wymes; (g) the first named defendant/respondent is Laurence Crowley, hereinafter referred to as the Receiver; (h) the second named defendant/respondent is Northern Bank Finance Corporation Limited; (i) the third defendant/respondent is Ulster Investment Bank Limited; (j) the fourth defendant/respondent is Allied Irish Investment Bank Limited; the second, third and fourth defendants/respondents are referred to collectively as the Banks; (k) the fifth named defendant/respondent MacKay and Schnellmann Ltd. is no longer a party to the proceedings, the plaintiffs by consent in June, 1997 dropped their claim against this defendant. Richard Wood and Michael Wymes, the fifth and sixth plaintiffs/appellants are directors of Bula and Holdings. The sixth plaintiff/appellant is the moving party in the litigation. The third plaintiff/appellant (now deceased) and his son the fourth plaintiff/appellant, who took no part in this action, were directors of Bula. The first, second, fifth and sixth named plaintiffs/appellants are hereinafter referred to as the plaintiffs. Laurence Crowley, the first defendant/respondent, hereinafter referred to as the Receiver, is the Receiver appointed by the banks over the assets of Bula.

4. History
5

As stated previously this appeal is part of a long history of litigation between the parties. The history was recounted by the learned trial judge as follows:

"It was the intention of Bula and its directors to engage in major mining operations on its lands and to that end large sums of money were borrowed from the Banks and duly secured by a number of mortgages and debentures, which entitled the relevant bank holding security to appoint a Receiver over the property of the company in the event of default being made by Bula in its obligations to the bank in question."

6

Bula's commercial intentions were not realised and major financial difficulties ensued in consequence of which the Banks called in their loans by formal demands dated respectively 25 th June, 28 th July and 5 th August, 1982.

7

The latest dates for uncontested repayments in respect of the sums borrowed are 19 th February, 1986 as to NBFC; 31 stOctober, 1984 as to UIB and 19 th October, 1983 as to AIIB. Regarding UIB; there is a contested payment made on 23 rd May, 1986. There are also contested issues as to whether certain alleged acknowledgements were made by or on behalf of Bula which would have the effect of extending respective commencement dates for the running of time under the Statute of Limitations, 1957 (the Statute).

8

On 8 th October, 1985 the Banks appointed the first defendant as Receiver over Bula's secured property and it is contended by the Banks that he thereupon entered into possession of the property.

9

On 4 th April, 1997 each of the Banks issued proceedings seeking the recovery of principal and interest due by Bula to the respective banks.

10

On 22 nd April, 1997 each of the Banks brought well charging order proceedings against Bula. None of the summonses relating to these actions were served until 30 th March, 1998.

11

It is not in dispute that the purpose of the Banks in appointing the Receiver was that he would take control of the Company's assets and arrange for the sale of its lands, including the proposed mine, in discharge of the debts owing by Bula to the Banks. The Receiver has actively pursued that objective since appointment but has been frustrated in his efforts by presistent unsuccessful litigation orchestrated by the sixth defendant who has demonstrated that he is implacably opposed to the sale of the potential Bula mine in any circumstances and is determined to place every possible obstacle in...

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