Fennell v Collins

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 26 July 2019
• Neutral Citation: [2019] IEHC 572
• Docket Number: 2019 No. 50 SP
• Court: High Court
• Date: 26 July 2019

[2019] IEHC 572

THE HIGH COURT

Simons J.

2019 No. 50 SP

BETWEEN

KEN FENNELL

PLAINTIFF

AND

DARREN COLLINS

DEFENDANT

Lis pendens – Vacation – Delay – Plaintiff seeking to vacate a lis pendens registered against certain lands – Whether the delay in prosecuting the proceedings was unreasonable

Facts: The plaintiff, Mr Fennell, applied to the High Court to vacate a lis pendens registered against certain lands in Co. Galway. The plaintiff had been appointed as receiver over those lands pursuant to a deed of mortgage and charge. The mortgage had been entered into between the registered owner of the lands and Ulster Bank Ltd. The receiver explained on affidavit that he wished to exercise the power of sale under the mortgage, but that this had been frustrated by the existence of the lis pendens. The lis pendens had been registered by the defendant, Mr Collins, a nephew of the owner of the lands. The nephew instituted proceedings in May 2017 which claimed an interest over the mortgaged lands. The precise basis for this claim had not been set out in the pleadings but the nephew, who appeared as a litigant in person before the court, had since explained that the claim arose out of an alleged promise on the part of his uncle to provide him with an interest in the mortgaged lands in circumstances where the nephew was said to have worked the uncle’s farm for a number of years. The nephew explained that the alleged promise was made approximately twelve years ago. The nephew would have been twenty years old at that time. Relevantly, the timing of the alleged promise postdated the creation of the mortgage by several years and thus the mortgage would have priority over any claim for a beneficial interest.

Held by Simons J that the lis pendens should be vacated in circumstances where the nephew had been unable to provide any reasonable explanation as to why it was that proceedings instituted in May 2017 had not been progressed beyond the service of the plenary summons.

Simons J proposed to make an order vacating the lis pendens.

Order granted.

JUDGMENT of Mr. Justice Garrett Simons delivered on 26 July 2019.

INTRODUCTION

1 This judgment is delivered in respect of an application to vacate a lis pendens registered against certain lands in Co. Galway. The application is brought before the court by a person who has been appointed as receiver over those lands pursuant to a deed of mortgage and charge (‘ the mortgage’). The mortgage had been entered into between the registered owner of the lands and Ulster Bank Ltd.

2 The receiver has explained on affidavit that he wishes to exercise the power of sale under the mortgage, but that this has been frustrated by the existence of the lis pendens.

3 The lis pendens has been registered by a nephew of the owner of the lands. The nephew instituted proceedings in May 2017 which claim an interest over the mortgaged lands. The precise basis for this claim has not been set out in the pleadings but the nephew, who appeared as a litigant in person before the court, has since explained that the claim arises out of an alleged promise on the part of his uncle to provide him with an interest in the mortgaged lands in circumstances where the nephew is said to have worked the uncle's farm for a number of years. The nephew explained that the alleged promise was made approximately twelve years ago. The nephew would have been twenty years old at that time. Relevantly, the timing of the alleged promise postdates the creation of the mortgage by several years and thus the mortgage would have priority over any claim for a beneficial interest.

4 For the reasons set out herein, I am satisfied that the lis pendens should be vacated in circumstances where the nephew has been unable to provide any reasonable explanation as to why it is that proceedings instituted in May 2017 have not been progressed beyond the service of the plenary summons.

BACKGROUND

5 The plaintiff, Mr Ken Fennell, has explained in his affidavit dated 30 January 2019 that he has been appointed receiver over certain lands in Co. Galway. The deed of appointment is dated 9 October 2017, and has been exhibited as part of Mr Fennell's affidavit. The deed of appointment records that the appointment is made pursuant to a mortgage and charge dated 17 November 1998 made between Mr Sean Murphy and Ulster Bank Ltd. It seems that Promontoria (Oyster) DAC has since succeeded to Ulster Bank Ltd.'s interest in the mortgage. This change has been noted on the Land Registry folio.

6 There is a separate set of proceedings relating to the ownership of the mortgaged lands. Those proceedings were instituted in May 2017 by Mr Darren Collins, who is seemingly a nephew of the registered owner, Mr Sean Murphy. Those proceedings are entitled ‘ Darren Collins, Plaintiff, and Sean Murphy, Defendant’, and bear the High Court Record Number 2017 No. 3986 P. I will refer to those proceedings as ‘ the nephew's proceedings’ to distinguish them from the proceedings issued by the receiver (‘ the receiver's proceedings’).

7 The precise nature of the claim made in the nephew's proceedings is unclear in circumstances where no statement of claim has yet been delivered.

8 The plenary summons seeks almost twenty individual reliefs. The first three of which read as follows.

‘An Order that the Plaintiff is the beneficial owner of all the lands/property contained in Folio GY22173F (containing 19.13 hectares) all of County Galway.

A Declaration that the Plaintiff has put substantial amounts of money and time into the improvement and upkeep of all the lands/property contained in Folio GY22173F (containing 19.13 hectares) all of County Galway.

A Declaration that the Defendant has intentionally and deliberately encroached on the Plaintiff's property to his own advantage and enrichment.’

9 The next relief seeks to ‘rescind’ all mortgages on the folio.

‘An Order of Recission of any and all mortgage charges lodged by or on behalf of the Defendant on Folio GY22173F (containing 19.13 hectares) all of County Galway.’

10 The balance of the reliefs sought are directed to restraining any dealings in the lands, including the sale of the lands. Relevantly, these reliefs are directed to third parties as well as to the defendant.

11 On the same date as the nephew's proceedings were issued, an application was made to the Central Office of the High Court requesting that particulars of a lis pendens be registered in accordance with Section 121 of the Land and Conveyancing Law Reform Act 2009. The nephew subsequently applied to the Property Registration Authority requesting that particulars of the lis pendens be registered on the folio. The lis pendens was duly registered on Folio 22173F of the Register County Galway on 16 February 2018.

12 Other than serving the plenary summons, no steps have been taken to progress the nephew's proceedings. No appearance has been entered by the defendant.

THE RECEIVER'S PROCEEDINGS

13 The within proceedings, i.e. the receiver's proceedings, were instituted by way of special summons. The principal relief...