Farrell v Everyday Finance DAC

• Jurisdiction: Ireland
• Judge: Ms. Justice Máire Whelan
• Judgment Date: 26 January 2024
• Neutral Citation: [2024] IECA 16
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal Number: 2022/274

Between/

Aidan Farrell

Appellant

and

Everyday Finance DAC

Respondent

[2024] IECA 16

Whelan J.

Faherty J.

Haughton J.

Appeal Number: 2022/274

THE COURT OF APPEAL

CIVIL

UNAPPROVED

JUDGMENT ofMs. Justice Máire Whelandelivered on the 26th day of January 2024

Introduction

1 . This is an appeal against the judgment and order of Ms. Justice Stack made in the High Court on 6 October 2022 insofar as the said order refused the inspection and/or copying of certain documents, including but not limited to a Global Deed of Transfer dated 2 ^nd August 2018, together with an amended and reinstated Global Deed of Transfer dated 22 October 2018 (the Global Deeds), as made between, inter alia, AIB Plc (AIB) of the one part and the respondent, Everyday Finance DAC (Everyday) of the other part in both instances. The said relief was sought by the appellant pursuant to, inter alia, O.31, r.18, and/or O.50, r.4 of the Rules of the Superior Courts and s.91 of the Land and Conveyancing Law Reform Act, 2009 (the 2009 Act) or in the alternative, the inherent jurisdiction of the High Court.

General Background

2 . The appellant entered into certain loan agreements with AIB in 2006 pertaining to the purchase of properties in Donegal and Dublin. In 2014 AIB instituted proceedings against him arising from default on said loans. In 2015 certain negotiations took place between the appellant and AIB. It is pleaded that this was for the purposes of facilitating restructuring of the loans. It is pleaded by the appellant and falls to be determined at the substantive trial of the action as to whether certain documents dated 23 September 2015 and 28 September 2015 gave rise to a variation in respect of a Heads of Terms document dated 9 April 2015. It is contended on behalf of Everyday that it acquired the said loans and indebtedness of the appellant under and by virtue of, inter alia, the Global Deeds.

3 . On 10 August 2020 the appellant instituted proceedings against Everyday seeking injunctive and declaratory reliefs, including an order permitting the appellant to inspect the documents of title relating to his mortgaged properties in the possession or power of Everyday. He disputes that Everyday validly acquired his loans and all underlying securities. Various declarations were sought, inter alia, pursuant to s.91 of the 2009 Act contending that the appellant as mortgagor was entitled to inspect unredacted documents of Everyday's title, as mortgagee, “for the purpose of ascertaining their full terms meaning and effect”. It was contended that the appellant was entitled to first refusal or pre-emption in respect of all offers advanced to purchase loans and securities granted to AIB and/or that he had a right to be consulted and to participate in relation to the sale of his loans and securities. In a Statement of Claim delivered on 30 September 2020 the appellant pleaded:

“4. The Defendant asserts itself as successor in title to AIB's interest in the said loans and security and asserts title as mortgagee in respect of the Plaintiff's interest as mortgagor and for that purpose relies on a Global Deed of Transfer dated 2 August 2018 and an amended and reinstated Global Deed of Transfer dated 22 October 2018.”

It is pleaded that the appellant invoked s.91 of the 2009 Act for the purpose of seeking inspection of the said documents. (para. 6 of Statement of Claim)

“7. The Defendant has refused to provide inspection of the deeds dated 2 August 2018 and 22 October 2018 which have been described collectively as ‘the Global Deed of Transfer’ and has thereby unlawfully interfered with the Plaintiff's statutory right of inspection.”

4 . It is pleaded that the appellant is prevented from obtaining informed legal advice by reason of having been refused the inspection of the global deeds. Extensive matters are pleaded said to give rise to breaches of duties owed by Everyday to the appellant. It is pleaded that Everyday obstructed the sale and disposition of various secured properties by the appellant and that Everyday has wrongfully threatened the appointment of a receiver and that it is estopped, inter alia, by virtue of assurances and/or representations and/or conduct on the part of Everyday and its predecessor in title AIB from so doing.

5 . The appellant seeks a declaration at para. 4 for relief that:

“the Defendant as mortgagee having been validly requested to provide inspection of documents of title pursuant to Section 91 of the Land and Conveyancing Law Reform Act 2009 by the mortgagor may not appoint or direct a receiver or take any enforcement steps against the mortgagor until it has provided such inspection.”

Further, a declaration is sought that Everyday's “failure to provide title deeds when requested to do so was in fundamental breach of contract.”

6 . The appellant issued a notice of motion on 15 February 2021 seeking inspection of the two Global Deeds made between Allied Irish Bank Plc, AIB Mortgage Bank and EBS DAC and Everyday. Same was sought on several alternative bases as outlined aforesaid.

7 . Everyday delivered a Defence dated 19 ^th March 2021. Insofar as relevant to the issue of inspection of the Global Deeds of Transfer of 2 August 2018 and 22 October 2018, the following pleas are germane. At para. 3 reliance is placed on Everyday's status as registered owner of the mortgages' securities on the relevant folios in the Land Registry:

“…in respect of the subject investment properties which were originally registered in the name of AIB and …subsequently registered in the name of the Defendant to deny that the Plaintiff is entitled to the relief claimed against the Defendant.”

It is alleged that the appellant acquiesced in the “transfer of the loan agreements and related mortgage securities” to Everyday:

“… and did not challenge or dispute the transfer, and subsequently accepted and acknowledged the Defendant's title in the agreements and related mortgage securities by, inter alia, requesting the Defendant to release the Title Deeds in respect of the subject investment properties and by requesting the Defendant's consent to the sale of the subject investment properties.” (para. 4 of Defence)

8 . At para. 12 Everyday denies it unlawfully interfered with the appellant's statutory right of inspection provided for in s.91 of the 2009 Act as alleged in the Statement of Claim. Everyday denies:

“…that its refusal to allow the Plaintiff to inspect the Global Deed[s] of Transfer… has prevented the Plaintiff from obtaining informed legal advice as alleged in paragraph 8 of the Statement of Claim. Without prejudice to the foregoing, the Defendant denies that such legal advice is necessary in circumstances where confirmation of the Defendant's lawful acquisition of the agreements and the related mortgage securities was confirmed to the Plaintiff by AIB and the Defendant in advance of the transfer. In addition to the foregoing, the Defendant also relies on the Plaintiff's conduct, including, inter alia, the correspondence issued by the Plaintiff's solicitors in which the Plaintiff subsequent to the transfer of the agreements and related mortgage securities by AIB to the Defendant, requested the Defendant to release title deeds and to consent to the Plaintiff's proposed sale of the subject investment properties. The Defendant also relies on, inter alia, the matters pleaded in paragraphs 60, 64 and 73 of the Statement of Claim in which the Plaintiff confirms that he requested the Defendant to release Title Deeds and the Defendant's consent to the sale of the subject investment properties.”

9 . With regard to matters pleaded at paras. 44 to 47 inclusive of the Statement of Claim whereby the appellant had pleaded a continuing entitlement to enforceable rights and remedies as against AIB notwithstanding the latter's purported disposition of the appellant's loans to Everyday, in its Defence Everyday denies that a sale and transfer of the appellant's loans and related mortgage securities to Everyday required the prior consent of the appellant in the circumstances as pleaded. Everyday pleads that in the circumstances, the appellant having failed to discharge his indebtedness under the agreements, it is entitled to the lawful exercise of its rights and powers under the related mortgage securities, including the right to appoint a receiver over the subject investment properties.

10 . Para. 10 of the Defence pleads;

10. The Defendant pleads that s.91 of the 2009 Act entitles the Plaintiff as mortgagor, and so long as the right to redeem exists, to inspect and make copies of the documents of title furnished by the mortgagor to the mortgagee and executed by the mortgagor and mortgagee relating to the mortgaged property, which are held by and are in the possession and power of the mortgagee. With the exception of this category of title documents, the Defendant denies that the Plaintiff is entitled to inspect and take copies of other title documents and, in particular, the title documents executed further to the agreements entered into between, inter-alia, AIB and the Defendant and further to which the Defendant as transferee acquired the legal rights, interests and title previously vested in AIB in the agreements and related mortgage securities. These title documents which are confidential and commercially sensitive do not come within the scope of s.91 of the 2009 Act.”

Service of Notice to Produce

11 . On 22 March 2021 the appellant served a Notice to Produce documents on Everyday pursuant to O.31, r.15 in respect of the documents referred to at para. 10 of the Defence:

1. “… the agreements entered into between, inter alia, AIB and the Defendant…”

2. “…the title documents executed further to the agreements …”

The notice sought a time within three days when the documents might be inspected at the office of Everyday's solicitor and indicated that...