Daire v Wise Finance Company Ltd and Others
| Jurisdiction | Ireland |
| Judge | Ms. Justice Laffoy,Ms. Justice Baker |
| Judgment Date | 20 March 2014 |
| Neutral Citation | [2013] IEHC 337,[2014] IEHC 271 |
| Court | High Court |
| Date | 20 March 2014 |
[2013] IEHC 337
THE HIGH COURT
BETWEEN
AND
REGISTRATION OF TITLE ACT 1964 S62(7)
COMPANIES ACT 1963 S174
COMPANIES ACT 1963 S175
LAND & CONVEYANCING LAW REFORM ACT 2009 S123
BARRY v BUCKLEY 1981 IR 306
FAY v TEGRAL PIPES LTD 2005 2 IR 261
RAYAN RESTAURANT LTD v KEAN & ANOR UNREP WHITE 17.1.2012 2012/40/11924 2012 IEHC 29
RSC O.19 r28
MCGRATH CIVIL PROCEDURE IN SUPERIOR COURTS 3ED PARA 16.14
MCGRATH CIVIL PROCEDURE IN SUPERIOR COURTS 3ED PARA 16 -36
CHARALAMBOUS v NAGLE UNREP SUPREME 31.3.2011 2011 IESC 11
GUNNING v SHERRY UNREP HOGAN 28.2.2012 2012/17/4816 2012 IEHC 88
RIORDAN v IRELAND (NO 4) 2001 3 IR 365
Ownership of land - Procedural Rules - Re-litigation - Frivolous or vexatious proceedings - Abuse of process - Inherent jurisdiction to stay proceedings - Res judicata - Lis pendens
Facts: In the plenary summons, the plaintiff sought inter alia a declaration that a loan between himself and the Wise Finance Company Limited (mortgagee) was void; an order detailing that that plaintiff was the owner of four parcels of land and 16.598 hectares of unregistered land in Roscommon; damages; an injunction restraining the defendants from disposing of the land; costs and other reliefs; and an order vacating the 31/7/2006 High Court order. This 2006 High Court order, amended by a 2012 appeal in the Supreme Court ordered possession of the unregistered land in favour of the mortgagee; possession of two of the registered land parcels; with well charging orders being made over the other two registered lands - one at £97,000 which with interest was €443,139, the second being a similar amount.
This judgment concerned applications by the mortgagee and Ronald Weisz seeking an orders dismissing the plaintiff”s claim for relief and preventing the plaintiff from bringing further proceedings against them. Moreover, they sought an order vacating the lis pendens registered in respect of both the four parcels of land and the unregistered lands. They contended that the plaintiff had no reasonable cause of action; that he was attempting to re-litigate matters which had already received a final order; and that the proceedings were ‘frivolous and vexatious’ and an abuse of court process.
The court found that allowing the plaintiff to prosecute would indeed be an abuse of process. The orders given by the Supreme Court were to be conclusive. The court held that no new facts had been brought forward by the plaintiff; that his appeal to the Supreme Court had been withdrawn; and that therefore the litigation was without merit given that it was an attempt to re-litigate what had already been decided.
The court therefore decided to make the orders proposed by Ronald Weisz and the mortgagee striking out the plaintiff”s claim; retraining further proceedings without leave; and vacating the lis pendens registered contra the interest of the mortgagee. Per curiam, the proceedings against Arthur Gunning were said to remain pending and unaffected by this judgment.
Judgment of Ms. Justice Laffoy delivered on 11th day of July, 2013.
1. In the plenary summons in this matter, which was issued by the plaintiff in person on 17 th December, 2012, the plaintiff's claim as outlined in the endorsement of claim is for the following reliefs:
(a) a declaration that the loan agreement made between the plaintiff and the first named defendant (the Mortgagee) on 9 th October, 1996 and the loan agreement made between the plaintiff and the Mortgagee dated 10 th April, 1997 are void and unenforceable;
(b) if necessary, an order of rescission of the said loan agreements;
(c) an order vacating the order of the High Court dated 31 st July, 2006;
(d) an order that the plaintiff is the beneficial owner of the lands contained in Folios 24157F, 35029, 35030 and 9409, County Roscommon and certain unregistered lands being part of the lands of Lisagallon or Cloverhill comprising 16.598 hectares situate in County Roscommon (the Unregistered Lands);
(e) an order directing the Registrar of Titles to register the plaintiff as owner of the lands in Folios 24157F, 35030, 9409 and 35029, County Roscommon,
(f) damages including "punitative", aggregated or exemplary damages;
(g) an injunction restraining the defendants their servants or agents from dealing with or disposing of the said lands pending the determination of these proceedings;
(h) further and other reliefs; and
(i) costs.
2. The order of the Court referred to at (c) in the endorsement of claim is an order which was made in the High Court by Dunne J. on 31 st July, 2006 in proceedings between the Mortgagee, as plaintiff, and the plaintiff in these proceedings, as defendant (Record No. 2004/401 SP) (the 2004 Proceedings). In the interests of clarity, I will refer to the plaintiff in these proceedings and the defendant in the 2004 Proceedings as Mr. Daire.
3. The 2004 Proceedings were initiated by a special summons which issued on 28 th September, 2004 in which the Mortgagee sought orders for possession of -
(a) the Unregistered Lands, which had been the subject of a loan agreement dated 11 th November, 1996 and a mortgage dated 13 th March, 1997 in favour of the Mortgagee; and
(b) pursuant to s. 62(7) of the Registration of Title Act 1964,of the lands comprised in Folios 35030 and 9409 of the Register of Freeholders, County Roscommon, being the lands the subject of a loan agreement dated 10 th April, 1997 and a deed of charge dated 15 th April, 1997 in favour of the Mortgagee.
The Mortgagee also sought a well charging order and ancillary orders in relation to the lands registered on Folio 35029 and Folio 24157F of the Register of Freeholders, County Roscommon on foot of an undertaking given by a firm of solicitors acting for Mr. Daire to hold the title deeds in respect of the said lands on trust for the Mortgagee as security for the loan advanced under the loan agreement dated 11 th November, 1996. The affidavit grounding the 2004 Proceedings was sworn by the second defendant (Mr. Weisz) on 28 th September, 2004. The Mortgagee's claim for the reliefs sought was comprehensively outlined in that affidavit, in which Mr. Weisz described himself as a director of the Mortgagee. An appearance was entered on behalf of Mr. Daire as defendant in the 2004 Proceedings by William Hackett & Co., Solicitors, on 8 th December, 2004. There followed an exchange of affidavits which I propose to outline as far as is necessary to address the issues which arise on the applications now before the Court.
4. The first replying affidavit sworn by Mr. Daire on 7 th January, 2005 was filed on his behalf by his solicitors. The thrust of the affidavit was that the proceedings were vexatious, because earlier proceedings had been discontinued. Of relevance for present purposes is that Mr. Daire referred to a search on 5 th January, 2005 by his solicitor in "the UK Companies Office", which it was asserted indicated that there was only one director listed for the Mortgagee, being apparently Mr. Weisz, the other named director having been said to have resigned in 2000. On that basis, Mr. Daire alleged that the Mortgagee was in breach of s. 174 and/or s. 175 of the Companies Act 1963 (the Act of 1963) for upwards of four years. It was also alleged that the Mortgagee was not at the material times a "Mortgage Lender". It was further asserted that the mortgages and charges relied on by the Mortgagee were invalid, void and unenforceable and that the terms of the loan agreements did not have the effect contended for by the Mortgagee. Among the other responses made by Mr. Daire was an assertion that it was not correct to say, as Mr. Weisz had averred in the grounding affidavit, that the lands were not a family home within the meaning of the Family Home Protection Act 1976 as Mr. Daire and his lawful wife were in actual occupation thereof.
5. Mr. Weisz swore a second affidavit on 15 th February, 2005 responding to the assertions which had been made in Mr. Daire's first affidavit. As regards the alleged breach of s. 174 or s. 175 of the Act of 1963, Mr. Weisz averred that he and Fiona Marie Weisz had been directors of the Mortgagee without interruption since 1992 and he exhibited a copy of the Current Appointments Report from Companies House in the United Kingdom dated 12 th January, 2005. In fact, in the grounding affidavit Mr. Weisz had averred that the Mortgagee is a limited company and that it was incorporated under the laws of England and Wales on 7 th July, 1988 and that it is registered as an external company in Ireland on 14 th November, 1995. Mr. Weisz also addressed Mr. Daire's allegation that the Mortgagee is not a mortgage lender. In fact, Mr. Weisz had averred in the grounding affidavit that the Mortgagee is a mortgage lender within the meaning of the Consumer Credit Act 1995 (the Act of 1995). In his second affidavit he set out the factual basis on which the Mortgagee was a mortgage lender within the meaning of the Act of 1995. Mr. Weisz observed that Mr. Daire had offered no factual basis for the contention that the relevant mortgages were invalid or void. The contention of Mr. Daire that any of the properties in issue were a family home was factually disputed by Mr. Weisz.
6. Mr. Daire swore a second affidavit on 3 rd March, 2005 which, again, was filed on his behalf by his solicitors. He exhibited an article which had appeared in the Sunday Business Post on 27 th February, 2005 and quoted therefrom to the effect that Mr. Weisz "ran three mortgage-lending agencies … offering high cost, high...
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