Ewins v Promontoria Scariff Designated Activity Company and Another

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Marguerite Bolger
• Judgment Date: 20 September 2024
• Neutral Citation: [2024] IEHC 556
• Docket Number: [Record No. HP 2023/4965]

Between

Lucy Ewins

Plaintiff

and

Promontoria Scariff Designated Activity Company and David O'Connor

Defendants

[2024] IEHC 556

[Record No. HP 2023/4965]

THE HIGH COURT

Application for interlocutory relief - completation of house after failure to meet mortgage requirements - application refused

Facts: The plaintiff submitted an urgent application for an interlocutory relief hearing. The plaintiff sought injuctions to restrain the completation of the sale of her house due to failure to make mortgage repayments and to restrain any interference with her peaceful enjoyment of the property, pending the trial of action. The plaintiff also sought an interlocutory order restraining the first defendant from denying her right to redemption of her motgage over the property. The plaintiff submitted the following grounds; (1) the property is her principal private residence ('PRR') and that the purported sale is unlawful as the defendant did not comply with the Central Bank's Code of Conduct on Mortgage Arrears; (2) The defendant unlawfully refused to allow the plaintiff to exercise her rights of redemption. The application on the PPR ground was refused and the court was not satisifed that it is appropriaate to grant interlocutory relief and/or that the least risk of injustice favoured the grant of relief.

Application refused

JUDGMENT of Ms. Justice Marguerite Bolger delivered on the 20 ^th day of September 2024

1 . This is the plaintiff's urgent application for interlocutory relief heard on 13 September last.

Background

2 . The plaintiff is the joint owner, with her estranged husband, of a property at 72 The Rise, Knocknacarra, Galway (hereinafter referred to as “the property”) which was purchased by the plaintiff and her estranged husband in 1999 with a mortgage. The mortgage was later transferred and then acquired by the first defendant on 30 November 2018. The plaintiff separated from her husband in 2012 and thereafter she avers that she moved into the property on a permanent basis and that it is her principal private residence. The plaintiff has been in default in her mortgage repayments for many years. The second defendant was appointed as receiver over the property on 20 October 2020 and purported to sell the property by public auction on 24 July 2024.

3 . In these interlocutory proceedings, the plaintiff seeks injunctions to restrain the completion of that purported sale and any interference with her peaceful enjoyment of the property, pending the trial of the action. She also seeks an interlocutory order restraining the first defendant from denying her right to redemption of her mortgage over the property.

The plaintiff's grounds

4 . The plaintiff moves on two grounds:-

• (1) The property is her principal private residence (‘PPR’) and that the purported sale is unlawful as the defendant did not comply with the Central Bank's Code of Conduct on Mortgage Arrears.

• (2) The defendant unlawfully refused to allow the plaintiff to exercise her rights of redemption.

Principal Private Residence

5 . The plaintiff avers that the property is her PPR and is supported by her adult son who has averred that he lives in the property with her. This is disputed by the defendants' affidavit which sets out various reasons and evidence (much of which is hearsay, as can arise at an interlocutory stage) why they dispute that and asserts that the plaintiff lives at the same residence she had lived in over the years with her husband in Dublin. The defendants' affidavit also avers that the property has been rented to tenants at various times since 2012 but the plaintiff says this only related to some of the rooms in the house and that she has lived there with other people since 2012.

6 . There has been no notice of intention to cross-examine the plaintiff or her son on their affidavits and the defendants challenge the plaintiff's sworn averments largely by second hand and hearsay evidence. In those circumstances the plaintiff's affidavits might have been sufficient to establish a fair question to be tried as to whether or not this property is the plaintiff's PPR. However, the defendants have raised a procedural challenge to the plaintiff's right to move on this PPR point at all in seeking interlocutory relief. These proceedings are the fifth set of proceedings brought by the plaintiff since the appointment of the receiver in 2020 and the second injunction within these proceedings. The plaintiff's previous interlocutory injunction application in these proceedings, which she issued when she was a lay litigant on 14 February 2024, was struck out by consent with costs to the defendant on 18 April 2024 at which time she was represented by her current legal team. That application (a copy of which was exhibited in this application) covered, in almost identical terms, the same issues, averments and evidence in relation to the PPR as the plaintiff seeks to move on in these proceedings.

7 . The plaintiff argues that the within application is different insofar as she also relies on what she says was the defendant's denial of her equitable right of redemption that she sought to exercise on 24 July 2024 in advance of the auction. I will come to that second ground further below but, insofar as the plaintiff seeks to move on the stand alone PPR point, which she already sought to litigate and chose to settle with legal advice by way of the...