Everyday Finance DAC v Jerry Beades

• Jurisdiction: Ireland
• Judge: Ms. Justice Máire Whelan
• Judgment Date: 18 February 2021
• Neutral Citation: [2021] IECA 48
• Date: 18 February 2021
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record No. 2019/254

Between:

Everyday Finance DAC

Plaintiff

and

Jerry Beades

Defendant/Appellant

[2021] IECA 48

Whelan J.

Noonan J.

Haughton J.

Court of Appeal Record No. 2019/254

High Court Record No. 2012/331 SP

THE COURT OF APPEAL

UNAPPROVED

NO REDACTION NEEDED

JUDGMENT of Ms. Justice Máire Whelan delivered on the 18 ^th day of February 2021

Introduction

1 . This is an appeal from the order of the High Court (O'Connor J.) of 24 May 2019 granting Cheldon Property Finance DAC's (hereinafter “Cheldon”) application pursuant to O. 17, r. 4 of the Rules of the Superior Courts (“RSC”) to name Cheldon as the sole plaintiff in the proceedings. Cheldon was further granted leave pursuant to O. 42, r. 24(a) RSC to issue execution on foot of the order of McGovern J. of 6 March 2014, the said order to be amended pursuant to O. 28, r. 12 RSC so that Cheldon would be substituted for Permanent TSB as the plaintiff in the title thereof.

2 . The title page of this judgment reflects the most up-to-date details of the parties in the underlying High Court proceedings as recorded by the Central Office of the High Court. This should not be taken as a pre-judgment of the issues discussed herein or of any other appeals brought by the appellant. For the purposes of the substance of this judgment, “the respondent” refers to Cheldon.

Background

3 . The within proceedings were initiated by way of special summons issued on 12 June 2012 by Permanent TSB.

4 . Following the judgment of McGovern J. delivered on 25 February 2014, [2014] IEHC 81, Permanent TSB was granted an order for possession on 6 March 2014 of certain properties in Fairview. The order for possession was made on foot of a deed of mortgage in respect of the properties dated 23 December 2002 created by the appellant in favour of Permanent TSB by way of security for his liabilities, including, inter alia, those arising on foot of a loan facility letter dated 4 October 2002. Pursuant to the terms and conditions of the facility letter, a loan facility in the amount of €1,778,000 was made available to the appellant.

5 . By deed of conveyance and assignment dated 14 October 2015, Permanent TSB transferred, conveyed and assigned to Cheldon all of the rights, title, interest and benefits of Permanent TSB pursuant to the mortgage of December 2002. The appellant was notified of the transfer of the relevant loan facilities to Cheldon in October 2015.

6 . By notice of appeal dated 23 April 2014, the appellant initiated an appeal against the order for possession. By order of the Court of Appeal dated 17 October 2016, Cheldon was joined as a co-plaintiff to the proceedings and as co-respondent to the appeal. The special summons was amended on 9 November 2016 pursuant to the order of the Court of Appeal.

7 . The appeal against the order for possession was dismissed by the Court of Appeal on 13 November 2017. By a determination of the Supreme Court of 22 November 2018, the appellant was refused leave to further appeal same.

Notice of motion of 7 March 2019

8 . By notice of motion of 7 March 2019, Cheldon applied to the High Court for the following reliefs:

The application was grounded on the affidavit of 6 March 2019 of Albert Prendiville, a director of Cheldon.

• (1) an order pursuant to O. 17, r. 4 RSC and/or pursuant to the inherent jurisdiction of the High Court naming Cheldon as the sole plaintiff in the proceedings;

• (2) an order pursuant to O. 42, r. 24(a) RSC and/or pursuant to the inherent jurisdiction of the High Court granting Cheldon liberty to issue execution of the order for possession; and,

• (3) an order pursuant to O. 28, r. 12 and/or pursuant to the inherent jurisdiction of the High Court amending the order for possession to name Cheldon in place of Permanent TSB as the plaintiff in the title thereof.

9 . A replying affidavit of the appellant was sworn on 9 May 2019 wherein he took issue, inter alia, with the title on the notice of motion and on the grounding affidavit; Cheldon's title and locus standi; the assignment or transfer of the order for possession; and, the manner in which the debt due by the appellant was calculated. He averred at para. 16 that he was not in control or possession of the relevant properties as they had been the subject of family law proceedings in 2012. That Albert Prendiville had been given access to the books and records of Permanent TSB was alleged to be in breach of the General Data Protection Regulation. The appellant also averred at para. 20 that he had entered into negotiations with “the plaintiffs” to resolve matters amicably.

10 . An affidavit of John Burke, another director of Cheldon, was sworn on 20 May 2019 in response to the appellant's affidavit.

Judgment of the High Court

11 . An ex tempore judgment of the High Court was delivered on 24 May 2019, [2019] IEHC 359. After outlining the procedural history of the proceedings, the trial judge noted the appellant's reliance on Talbot v. McCann Fitzgerald Solicitors [2009] IESC 25 in opposing Cheldon's application pursuant to O. 17, r. 4; submitting that the court had no jurisdiction to set aside the final judgments and orders in the proceedings. At para. 12 the trial judge observed:-

“There is no question that this court is setting aside or altering the judgment or order of McGovern J. and particularly the orders of the Court of Appeal of 17th October, 2016, and 13th November, 2017, together with the certificate of re-registration of Cheldon. Cheldon is properly applying for the orders because it is desirable, if not necessary, to ensure that an execution order is proper on its face.”

12 . The trial judge agreed with Cheldon that the decision in Bank of Ireland Finance Ltd. v. Browne (Unreported, High Court, Laffoy J., 24 June 1996) was on all fours with the application before the court. He rejected the appellant's submission that Permanent TSB ought to have been notified of the application or consented to same and observed that no consideration was given to the effect of the Court of Appeal order of 17 October 2016.

13 . He then turned to consider Cheldon's application pursuant to O. 42, r. 24(a). At para. 16 he characterised the submission made on behalf of the appellant that the order for possession was being assigned in part only as a “typical wearisome attempt by Mr. Beades to delay the inevitable acting with some impunity given his significant indebtedness on the facts disclosed in the affidavits.” He referred to para. 40 of O'Sullivan v. Ireland [2019] IESC 33 wherein Charleton J. observed that the Supreme Court had identified in Talbot v. Hermitage Golf Club [2014] IESC 57:-

“…that there was a limit as to the time and resources that any case could command. …judges could and, in appropriate cases, should intervene to ensure the efficient disposal of litigation. Cases should move on and judges are cloaked with sufficient authority to take such decisions as would ensure that this happened.”

14 . The trial judge also referred to para. 38 of O'Sullivan v. Ireland wherein Charleton J. had observed that the delays which had incurred in that case arising from sundry applications amounted to a “disservice to the administration of justice”. The trial judge noted that the appellant was not making a positive application to the court but rather resisting a rather routine procedural application “to thwart the execution of long-standing orders for possession of properties”.

15 . He characterised the appellant's suggestion that the “goodbye letter” of 24 April 2019 sent by Cheldon to the appellant notifying him of its intention to transfer the relevant loans to Pepper Finance Corporation Ireland DAC should be considered as indicating that Cheldon will not ultimately be executing the judgment as “yet a further exasperating attempt on behalf of Mr. Beades to cloud and postpone the inevitable.”

16 . The trial judge determined that the order for possession stood and that the precise sum which would ultimately be found due was not for determination by him.

17 . He held at para. 24 that the appellant's complaints about accessing records and issues concerning compliance with the General Data Protection Regulation were “yet another grasp at an ill-considered strand which has no effect on the applications before this court now”. He was satisfied that the affidavit of John Burke of 20 May 2019 clarified the issues.

Notice of appeal

18 . In the notice of appeal filed 31 May 2019, the appellant raised grounds of appeal, inter alia, contending that the trial judge erred:

It was further alleged that the trial judge had a conflict of interest and should have recused himself from hearing the application, and that the trial judge had shown bias against the appellant and had determined the outcome of the application before hearing the case. However, no written submissions were filed in relation to these grounds and they were not pursued at the hearing of this appeal.

• (1) in holding that he was not amending a final order of the court;

• (2) amending the order for possession without jurisdiction;

• (3) in construing the order for possession in holding that the application was not superfluous; and,

• (4) in holding that service of notice of the application on the original plaintiff was not required.

19 . The respondent opposed the appeal.

Submissions of the appellant

20 . The written submissions of the appellant are expressed to be directed to this and related appeals bearing record numbers 2019/276 and 2019/487.

21 . At para. 7 of the appellant's submissions, the issues arising in these appeals were identified as:

• (1) whether Permanent TSB ought to have been on notice of Cheldon's applications;

• (2) whether the court could amend a final order of the High Court;

• (3) whether an order for possession could be assigned.

22 . Reference was made to Bank of Ireland Finance Ltd. v. Browne wherein...