Coulston v Doyle
| Jurisdiction | Ireland |
| Judge | Mr. Justice Cregan |
| Judgment Date | 10 August 2023 |
| Neutral Citation | [2023] IEHC 546 |
| Court | High Court |
| Docket Number | [2021/116 SP] |
[2023] IEHC 546
[2021/116 SP]
THE HIGH COURT
Lis pendens – Vacation – Land and Conveyancing Law Reform Act 2009 s. 123 – Plaintiff seeking an order vacating a lis pendens – Whether the defendant registered the lis pendens in a manner which amounted to an abuse of process
Facts: The defendant, Mr Doyle, on 3rd November, 2016, issued plenary proceedings (the 2016 proceedings) against Allied Irish Banks Plc (AIB) and the plaintiff, Mr Coulston (the receiver). On 28th November, 2016, a lis pendens was registered by the defendant over Folio 21063F of the Register of Freeholders in County Carlow. The receiver applied to the High Court seeking: (i) an order vacating the lis pendens pursuant to the inherent jurisdiction of the court and/or pursuant to s. 123 of the Land and Conveyancing Law Reform Act 2009; and (ii) an order restraining the defendant from registering a further lis pendens in relation to the said Folio. The receiver in his grounding affidavit stated that the 2016 proceedings had never been served on him or on any of the parties to the proceedings, including AIB. The receiver also stated that the failure to serve the plenary summons within one year (or any period of renewal) meant that the plenary summons had long since expired. The receiver also stated that, in the absence of any attempt to serve the plenary summons or a statement of claim, he believed that the plenary summons were issued for the sole purpose of frustrating any attempt to sell the property. The receiver also stated that the defendant had been significantly in default in prosecuting the proceedings and no steps had been taken in the proceedings for over seven years since the issuing of the plenary summons. The receiver also stated that the registration of the lis pendens amounted to an attempt by the defendant to obtain the benefit of an interlocutory injunction without fulfilling the criteria required to obtain an interlocutory injunction or without having to provide any appropriate undertaking as to damages. The receiver stated that the person who registers a lis pendens is under an obligation to prosecute proceedings expeditiously but the defendant had taken no steps in the 2016 proceedings whatsoever – not even serving the proceedings on the parties. The receiver also said that he was “a person affected“ by the lis pendens because he wanted to sell the property in order to reduce the sums due and owing to Everyday Finance DAC. He said that his ability to sell or otherwise deal with the property was hindered by the existence of the lis pendens. Therefore, he stated that it was just and equitable that the lis pendens should be vacated pursuant to the inherent jurisdiction of the court and/or pursuant to s. 123 of the 2009 Act.
Held by Cregan J that the court would vacate the lis pendens pursuant to its inherent jurisdiction on the grounds that the defendant issued his 2016 proceedings and registered a lis pendens in a manner which amounted to a clear abuse of process. Cregan J was of the view that the receiver was “a person affected” by the lis pendens within the meaning of s. 123 of the 2009 Act. Cregan J was also of the view that there had been an unreasonable delay by the defendant in prosecuting his 2016 proceedings. Cregan J was also of the view that the defendant’s 2016 proceedings were not being prosecuted bona fide. Cregan J held that, in the circumstances, the various statutory requirements had been fulfilled and he would therefore make an order vacating the lis pendens under s. 123 of the 2009 Act also. Cregan J held that the receiver was validly appointed and the novation in the receivership was validly effected.
Cregan J held that the court would grant an order restraining the defendant from registering a further lis pendens in respect of the said property.
Application granted.
JUDGMENT of Mr. Justice Cregan delivered on the 10 day of August, 2023
. This is an application by the plaintiff seeking:-
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(i) an order vacating a lis pendens pursuant to the inherent jurisdiction of the court and/or pursuant to s. 123 of the Land and Conveyancing Law Reform Act, 2009 and
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(ii) an order restraining the defendant from registering a further lis pendens in relation to the said Folio.
. The application is grounded upon the affidavit of Mr. John Coulston, who is the receiver appointed in respect of the said lands under a deed of appointment dated 5 th October, 2015.
. On or about 12 th March, 2009, the defendant and Ms. Margaret O'Neill borrowed a sum of €689,000 approximately from Allied Irish Banks Plc (“AIB”) and AIB Mortgage Bank (“AIBMB”).
. The security for the said loan included the execution of an all sums mortgage/charge over the property set out in Folio 29063F which said mortgage/charge permitted AIB to appoint a receiver over the charged property after the occurrence of any event of default.
. On 3 rd December, 2009, AIB and AIBMB procured the registration of the charge as a burden over the property in Folio 21063F of the Register of Freeholders, County Carlow.
. The borrowers defaulted on their loan and by letter of demand dated 20 th May, 2013 AIB demanded payment of the balance of the loan which, as at 20 th May, 2013, was in the sum of €836,000 approximately.
. The defendant failed, refused and/or neglected to pay the sum demanded or any part of it.
. On 28 th July, 2014, AIB, having issued summary proceedings, obtained a judgment against the defendant and Ms. O'Neill in the sum of €903,000.
. This judgment was subsequently appealed by the defendant but, as he failed to comply with directions of the Court of Appeal in respect of the filing of legal submissions, his appeal was struck out.
. On 16 th August, 2016, AIB and AIBMB transferred its interest in the loan and the mortgage/charge to Allied Irish Bank by way of deed of transfer and assignment. Thus the loan and mortgage were transferred to AIB on that date. The folio was subsequently updated on or about 23 rd August, 2016 to reflect the sole ownership of the mortgage/charge by AIB.
. AIB then, on 5 th October, 2016, by deed of appointment, appointed the plaintiff as receiver in respect of the property. This appointment was confirmed by the plaintiff receiver on 7 th October, 2016.
. Shortly after the appointment of a receiver, on 3 rd November, 2016, Mr. Doyle, the defendant in these proceedings, issued plenary proceedings (Record No. 2016/9774P) (“the 2016 proceedings”) against AIB and the receiver. However, these plenary proceedings were not at any stage served on either AIB, or its successor in title, or on the receiver. As a result no appearance was entered by any defendant to these proceedings.
. On 28 th November, 2016 (i.e. 25 days after the issuing of the 2016 proceedings) a lis pendens was registered by Mr. Doyle over Folio 21063F of the Register of Freeholders in County Carlow. No notification of the registration of the lis pendens – or Mr. Doyle's intention to do so – was received by the plaintiff. Moreover, Mr. Doyle did not give any notice to AIB or the receiver of the fact that he had registered the lis pendens.
. The receiver stated on affidavit that the lis pendens only came to his attention when he was endeavouring to find a purchaser for the property. As a result of the registration of the lis pendens he avers that he has “been unable to complete any contract for sale”.
. By a global deed of transfer dated 14 th June, 2019 between AIB and Everyday Finance DAC (“Everyday”), Everyday acquired the right, title and interest of AIB in the loan facility and in the related mortgage/charge.
. On 20 th June, 2019 AIB wrote to the borrowers and informed them that their loans and the mortgage/charge had been transferred to Everyday Finance.
. On 28 th June, 2019 Everyday wrote to the borrowers to inform them that AIB had transferred the loan and the mortgage/charge to Everyday.
. As such it is clear that there has been a legal assignment to Everyday Finance of the loan facility and the mortgage.
. The interest of Everyday in the mortgage was noted on Folio 21063F of the Register of Freeholders, County Carlow on 15 th August, 2019.
. On the same day that AIB transferred the loan to Everyday Finance, AIB, Everyday Finance and the receiver purportedly entered into a deed of novation dated 14 th June, 2019 to continue the appointment of the plaintiff as receiver over the said property. I will come back to this later in my judgment.
. The plaintiff receiver in his grounding affidavit states that the 2016 proceedings have never been served on him or on any of the parties to the proceedings, including AIB.
. The plaintiff also states that the failure to serve the plenary summons within one year (or any period of renewal) means that the plenary summons has now long since expired.
. The plaintiff also states that:-
“In the absence of any attempt to serve the plenary summons or a statement of claim I believe that the plenary summons were issued for the sole purpose of frustrating any attempt to sell the property”.
. There was no denial of this averment by Mr. Doyle.
. The plaintiff also states in his affidavit that Mr. Doyle has been significantly in default in prosecuting the proceedings and no steps have been taken in the proceedings now for over seven years since the issuing of the plenary summons.
. The plaintiff also states on affidavit that the registration of the lis pendens amounts to an attempt by the defendant to obtain the benefit of an interlocutory injunction without fulfilling the criteria required to obtain...
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