F v W. and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Liam Kennedy
• Judgment Date: 06 November 2024
• Neutral Citation: [2024] IEHC 631

Between

F.

Plaintiff

and

W., G., A Company

and

Other Persons Unknown in Occupation of a Property

Defendants

[2024] IEHC 631

THE HIGH COURT

Application for injunction for sale of property - error in documents - application refused

Facts: The proceedings sought injunctions to prohibit the Defendant from offering the property known as Penney's Cottage in County Kerry for sale. The Plaintiff had no active part in the matter and her estranged husband falsly claimed to be acting on her behalf as a Power of Attorney. First Active Bank, who had been one of the banks involved in lending the money to Dora O'Callaghan, ceased to exist at the time that a charge was registered on the Land Registry in 2008. Mr O'Callaghan noted this was fatal to the rights which the first names Defendant attempted to exercise over the land when the second and third defendant were appointed to sell the lands in March 2024.

Mr O'Callaghan further submitted that the the Property Registration Authority, now known as Tailta Éireann, the party responsible for the land registry, was wrong to register the interest of First Active and therefore the mortgage is void in law. He further argued that the mortgage sale deed is illegible, the deed appointing the reciever was not clear on the time it was executed and therefore is void. The Defendant responded that Mr O'Callaghan's name did not appear on the loan documentation at all, and presented Global Deed which specificallt refers to Penney's Cottage and to the loan granted to Dora O'Callaghan and her daughter Sandra.

The Judge held that the second named Defendant was validly appointed, in that the appointment does not have to be used deal pursuant to the mortgage deed. Judge further held that the mortgage is not void in law, and rejected all other arguments purported. In all circumstances the judge refused the application

Application refused

JUDGMENT of Mr Justice Liam Kennedy delivered on 6th November 2024 .

1 This judgment has been anonymised on the application of the First Named Defendant to the proceedings in accordance with s.27 Civil Law (Miscellaneous Provisions) Act 2008. The Court having been satisfied that the broadcast of any material related to this judgment that would identify the First Named Defendant as having ADHD or dyslexia would be likely to cause him undue stress, acceded to the application and prohibiting the publication or broadcast of any matter relating to the proceedings which would, or would be likely to, identify the Defendant as a person having those conditions.

2 This judgment explains my reasons for my decision: (a) to refuse the Defendant's application to stay these proceedings and/or adjourn a long scheduled and previously adjourned hearing; (b) to grant the Defendant a 21 day extension to the stay granted in my previous order that he vacate the premises in issue (until 21 November 2024); and (c) to grant (in part) the Plaintiff's application to strike out the defence in these proceedings. I will first explain the background and status of the litigation by way of context, confining myself as far as possible to the points relevant for present purposes and using abbreviations employed in earlier judgments in these proceedings but referring to the First Named Defendant as “the Defendant”, being the only Defendant for present purposes.

Background

3 The proceedings concern a property in Kilkenny (“the Property”) which the Plaintiff purchased from a receiver appointed by AIB Mortgage Bank and Allied Irish Bank plc (“the Banks”), who held a mortgage over it, and which the Defendant (who was not the Mortgagor) was unlawfully occupying. The Plaintiff issued these proceedings and an application for injunctive relief on 3 November 2023. He sought orders to require the Defendant to yield up possession. After affidavits were exchanged, the application came on for hearing and I delivered judgment on 6 August 2024 granting the application in the terms detailed therein (“the Injunction Judgment”).

4 As appears from the Injunction Judgment:

• a. In 2015, the Banks appointed a receiver/agent over the Property;

• b. On 17 August 2023, the Plaintiff bought the Property from the Banks' successor in title, doing so in the knowledge that; (i) the Property was unlawfully occupied; (ii) the Receiver could not gain access; and (iii) the Occupants were refusing to identify themselves, to engage with the Receiver or to recognise his entitlements and were demanding payment of €146,475 on the basis that the Property had been the Defendant's home for a number of years;

• c. The Plaintiff established a very strong prima facie case that he would be likely to succeed at trial. He proved his title. As the registered owner, he is presumed to have good title. No evidence was adduced to impugn his title.

• d. The Defendant had not adduced evidence to suggest that he had a lawful basis for their occupation of the Property or legitimate interest therein. There was no lease, payment of rent or permission from a previous owner. The only ground asserted to justify the Defendant's continued occupation — adverse possession — was demonstrably untenable for reasons outlined in the judgment including, inter alia, the Defendant's failure to particularise or substantiate his broad assertions and, more importantly: (i) the terms of his own first affidavit; (ii) the existence of the Banks' previous possession proceedings; and (iii) the July 2016 Order.

5 At the end of the Injunction Hearing, I gave the parties a provisional indication of my intention to grant the orders sought by the Plaintiff, but I delayed formalising my decision because the Defendant's motions (which had also been listed for hearing but had been adjourned in the absence of any books being filed) were pending and I wanted to give the unrepresented Defendant a full opportunity to make his case and also to address outstanding matters simultaneously. Accordingly, I afforded the Defendant an extended opportunity to file further papers or materials to clarify the basis for his adverse possession plea. I offered him the opportunity to file a further affidavit to clarify the basis for his adverse possession claim, emphasising that he should put all material on which he relied on affidavit and that he should exhibit any documents which supported his claim.

6 The Defendant did take various steps following the Injunction Hearing. However, the applications, affidavits, exhibits and other documents and submissions filed by him after the hearing were generally not relevant to the injunction application, except to the extent that they concerned the adverse possession claim.

7 The most significant development after the Injunction Hearing (and before the delivery of my August 2024 judgment) was the emergence of details of earlier litigation involving the Defendant in connection with the Property — 2016/3052P, AIB Mortgage Bank and Allied Irish Banks plc v David Walshe (“the 2016 Proceedings”), of which the Plaintiff had previously been unaware. It emerged that Mr Justice Binchy made an order in those proceedings on 22 July 2016 (“the July 2016 Order”), requiring the Defendant to deliver up vacant possession of the Property and restraining him from trespassing. The Defendant had not adverted to that litigation (or the July 2016 Order) in his affidavits and submissions at the hearing of the injunction application.

8 The Defendant's averments and adverse possession plea appear fundamentally inconsistent with the July 2016 Order and, indeed, also with the very existence of the 2016 Proceedings. He maintains that Mr Justice Binchy subsequently set aside the July 2016 Order on his application on 13 December 2016. The Court's records tell a different story, and they are consistent with information furnished by the solicitors who represented the Plaintiffs in those proceedings. The Defendant may have misunderstood the significance of the order made by Mr Justice Binchy on 13 December 2016. It is clear that the 13 December 2016 Order struck out the Defendant's application (rather than the July 2016 Order) on the basis that the Court had “no function in the hearing of the Motion herein”. Since the stay on the July 2016 Order had already expired by the time of the application, the Court presumably accepted the Plaintiffs' submission that the Court was “ functus officio” and that any stay application would need to be directed to the Court of Appeal. No such application was made. Although the Defendant may have been under the impression that Mr Justice Binchy reversed his earlier order and/or struck out the 2016 Proceedings, he is evidently mistaken. I am satisfied that it was the Defendant's own application (for a stay) which was struck out, leaving the July 2016 Order intact. Accordingly, the Defendant's claim (to have enjoyed unchallenged occupation of the Property over the years) is undermined by the fact of the 2016 Proceedings, even more so in view of the July 2016 Order. The mere initiation of the 2016 Proceedings appears fatal to his adverse possession claim, irrespective of the outcome of those proceedings. The ultimate outcome, the July 2016 Order, presents yet another obstacle.

9 The Defendant's 2 May 2024 affidavit was his main response to my repeated exhortation to clarify the basis for his plea of adverse possession, reiterating his assertion of adverse possession and disclosing he had lodged a claim with Tailte Éireann (which was subsequently exhibited without greatly advancing matters). While again advancing sweeping assertions, the affidavit did not adequately set out, particularise, document or verify, the basis for such claims. Nor did the Defendant adequately explain his contradictions as to when he moved into the Property. In the meantime, days after the Injunction Hearing (at which I had indicated that I was minded to make an order for possession) he filed his application under...