Burns and Another v Byrne and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Michael MacGrath
• Judgment Date: 29 July 2025
• Neutral Citation: [2025] IECA 154
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 2025/17

Between/

Anne Burns and Gerry Burns

Plaintiffs/Appellants

and

Thomas Byrne, BCM Global ASI Limited, Promontoria Snow DAC, Thomas McNulty, Joseph McNulty, Ippcove Limited, Tailte Éireann, Hilary Larkin, Mazars Ireland

Defendants/Respondents

[2025] IECA 154

Costello P

Meenan J

MacGrath J

Record Number: 2025/17

THE COURT OF APPEAL

Interlocutory injunction – Mootness – Abuse of process – Appellants appealing against the refusal of their application for an injunction – Whether the appeal was moot

Facts: The appellants, Mr and Mrs Burns, appealed to the Court of Appeal against the orders of Cregan J made on 20 November 2024 and perfected on 8 January 2025, refusing an application for an interlocutory injunction to stay the registration of dealing number D2024LR055800Y on Folio LM16013F pending the trial of the action. The property the subject matter of the dealing was located at 6 Duncarberry Heights, Tullahan, County Leitrim. The dealing related to an application by the sixth respondent, IPPCove Ltd, to the seventh respondent, Tailte Éireann, to be registered as owner of the property. Cregan J also struck out the proceedings in their entirety as being an abuse of process and that order was also appealed. The following issues arose for consideration: (1) whether the appeal against the refusal of the appellants’ application for an injunction was moot in light of the subsequent registration and completion of the dealing prior to the hearing of the appeal; (2) whether the trial judge fell into error in the exercise of his discretion to refuse the injunction; and (3) whether the trial judge fell into error in exercising his discretion to strike out the proceedings as being an abuse of process.

Held by MacGrath J that the approach to the issue of mootness was considered by the court in Harte v The Superior Courts Rules Committee [2025] IECA 23. He held that proceedings may be said to be moot where there is no longer any legal dispute between the parties: the eventual decision would be of no practical significance to the parties (Gould v Collins [2005] 1 ILRM 1) and the decision would not have the effect of resolving some controversy affecting or potentially affecting the rights of the parties. He held that a live controversy must be present not only when the action or proceeding is commenced but also when the court is called upon to reach a decision (Borowski v Canada [1989] 1 SCR 342). He noted that the rationale was explained by McKechnie J in Lofinmakin v Minister of Justice, Equality and Law Reform [2013] 4 IR 274. Adopting and applying those principles, MacGrath J held that as the sole relief sought by the appellants in their notice of motion was to restrain a dealing which was complete, the relief claimed had been overtaken by later events. He held that the injunctive relief claimed by the appellants could not be granted; there was no longer a lis between the parties on the issue which was at the heart of the injunction application. He held that the appeal was moot. MacGrath J was satisfied that no error had been demonstrated on the part of the trial judge in the exercise of his discretion to refuse the injunction; therefore, the appellants’ appeal against the refusal of their application for an injunction, even if not moot, must fail and must be dismissed. MacGrath J saw no error in the trial judge’s assessment or the exercise of his discretion in striking out the proceedings as being an abuse of process.

MacGrath J dismissed the appeal.

Appeal dismissed.

UNAPPROVED

NO REDACTION NEEDED

Judgment of Mr Justice Michael MacGrath delivered on the 29 ^th of July 2025

1 . This is an appeal by Mr and Mrs Burns, hereafter referred to as the appellants, against the orders of Cregan J made on the 20 ^th November 2024 and perfected on the 8 ^th January 2025, refusing an application for an interlocutory injunction to stay the registration of dealing number D2024LR055800Y on Folio LM16013F pending the trial of the action. The property the subject matter of the dealing is located at 6 Duncarberry Heights, Tullahan, County Leitrim (hereafter referred to as “the property”). The dealing relates to an application by IPPCove Ltd, the sixth respondent, to Tailte Eireann, the seventh respondent, to be registered as owner of the property. Cregan J also struck out the proceedings in their entirety as being an abuse of process and that order is also appealed.

The Parties to These Proceedings

2 . The appellants claim to be the owners of the property. The first respondent, Mr Thomas Byrne, is the company secretary of BCM Global ASI Ltd — the second respondent. On the 30 ^thMarch 2021, the entity, Link ASI Ltd, changed its name to BCM Global ASI Ltd, hereafter referred to as BCM Global. The third respondent, Promontoria Snow DAC, has been joined to the proceedings because of an assertion that issues arise from their alleged involvement in the securitisation of the mortgage in 2019. Thomas McNulty, the fourth respondent, is a director of the sixth respondent, IPPCove Ltd. Joseph McNulty, the fifth respondent, is also a director of IPPCove Ltd. The seventh respondent is the body charged, inter alia, with registration of titles. The eighth respondent, Ms Hilary Larkin, is the receiver of the property who was appointed to sell the property by the ninth respondent, Mazars Ltd. They were appointed as the agents of the second respondent for that purpose.

The Reliefs Sought in the Notice of Motion and Proceedings

3 . In their notice of motion issued on the 22 ^nd April 2024, the appellants sought an interim injunction to stay the registration of dealing Number D2024LR055800Y on Folio LM16013F pending the trial of the action and any subsequent appeals.

4 . The orders sought in the substantive proceedings are as follows:

I should also note that no claim for damages for trespass is pleaded in this case.

• (1) A quia timet injunction staying the registration of dealing number 2024LR055800Y pending trial of the within matter and any subsequent appeals.

• (2) An order setting aside the transfer between BCM Global and IPPCove Ltd “been a reviewable disposition, fraudulent…and illegally executed and contrary to statutory law, common law and constitutional law”.

• (3) Further and other relief, interest, costs and damages.

5 . The appellants claim various declarations, many of which are centred on the contentions that the property is and was a family home and that BCM Global is not a mortgagee, rather a credit servicer. They seek:

• (1) A declaration that a “reviewable disposition” under what might collectively be described as the Family Law Acts, was created in relation to the disposal of the property, which is described as a family home within the meaning of the Family Home Protection Act 1976, as amended.

• (2) A declaration that the transaction between BCM Global and IPPCove Ltd be set aside as being such a reviewable disposition.

• (3) A declaration that the option to purchase existed and was exercised at the time of sale, “ assuming that the appellant's refusal to consent to the option for the sale of her family home and, following the exercise of the option, would further refuse to consent to the subsequent contract for sale, if such was the case then the option could not be legally exercised by the purchaser”.

• (4) A declaration that such an option falls within the definition of disposition under the Family Law Act 1995, s. 35, and is therefore reviewable.

• (5) A declaration that no enquiry was made in relation to the Family Home Protection Act in respect of the first appellant's occupation of the property as a non-conveying beneficiary.

• (6) A declaration that the mortgagee did not seek a court order for repossession of the property, did not provide evidence to show that the power of sale had arisen, nor provide evidence that the mortgagee was in a position to furnish vacant possession or evidence of compliance with the provisions of the Family Home Protection Act.

• (7) A declaration that no deed of assurance from the mortgagee, nor the credit servicer, was provided in accordance with the Registration of Title Act 1964, s. 62 and the power of sale by a mortgagee.

• (8) A declaration that BCM Global (a credit servicer) did not have the power to enforce the credit agreement, contrary to the provisions of the Central Bank Act 1997, s. 28, as amended by the Consumer Credit Act 2015.

• (9) A declaration that the first appellant entered a notice of marriage under the Family Protection Act 1976, s. 12, on Part 2 of the Folio.

• (10) A declaration under the Land and Conveyancing Law Reform Act 2009 (the 2009 Act), sections 97 and 100, that no court orders for possession and/or sale of the property were obtained by the receiver or credit servicer prior to sale.

• (11) A declaration that the sale of the property, being a “housing loan”, by the credit servicer, required a court order or borrower consent in accordance with the provisions of the 2009 Act, s. 100.

• (12) A declaration that the Land Registry was not furnished with a solicitor's certificate to the effect that the charge was not a housing loan mortgage and that the registered owner did not act as a consumer within the meaning of Consumer Credit legislation.

• (13) A declaration that the 2009 Act, s. 100 (2) provides that a mortgagee's power of sale does not become exercisable without a court order granted under subs. (3), unless the mortgagor consents in writing to such exercise not more than seven days prior to such exercise, and that this did not occur.

• (14) A declaration that the 2009 Act, s. 100 (3), provides that after the expiration of the 28 days' notice period required by subs. (1), a mortgagee must apply to the court for an order authorising exercise of the power of sale, and that this did not occur.

• (15) A declaration that the 2009 Act, s. 96 (3) states that the provisions relating to the powers and...