Fennell v Slevin and Others
| Jurisdiction | Ireland |
| Judge | Mr Justice Edwards |
| Judgment Date | 12 July 2023 |
| Neutral Citation | [2023] IECA 177 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Court of Appeal Record No: 2021/40 |
[2023] IECA 177
Edwards J.
Faherty J.
Binchy J.
Court of Appeal Record No: 2021/40
High Court Record No: 2018/8210P
THE COURT OF APPEAL
JUDGMENT delivered by Mr Justice Edwards on the 12 th of July 2023 .
. For simplicity the respondent/plaintiff will hereinafter be referred to throughout this judgment as “the plaintiff”. Similarly, the appellants/defendants will hereinafter be referred to throughout as “the defendants”.
. This is an appeal against the judgment of the High Court (Sanfey J.) dated the 18 th of December 2018, the subsequent costs judgment of the High Court (Sanfey J.) dated the 11 th of February 2021, and the Order of the High Court drawn on the 11 th of February 2021 and perfected the same day reflecting the High Court's decisions as conveyed in both of the said judgments. The said judgments relate to an interlocutory application for injunctive relief by the plaintiff, the receiver appointed by a financial institution holding the mortgagee's interest in two residential investment properties over which he had been appointed receiver, in support of attempts by him, which were being resisted, to enter upon and take possession of the properties and to collect the income thereof.
. The Order of the 11 th of February 2021 reflects that the plaintiff had sought and was granted the following orders in relation to the properties described in the schedule to the Order (the two residential investment properties in question, being those properties comprised in Folios 8095F and 54840F, respectively, of the Register of Freeholders for the County of Donegal):
“ IT IS ORDERED that the Defendants and each of them their servants or agents or any other person having notice of the said Order be restrained pending the trial of this action from
1) preventing, impeding and/or obstructing the Plaintiff his servants or agents, from taking possession of getting in and collecting the properties described in schedule hereto (hereinafter ‘the Properties’);
2) preventing, impeding and/or obstructing the plaintiff his servants or agents from securing the Properties;
3) preventing, impeding and/or obstructing the Plaintiff his servants or agents from collecting the rent or other income of the Properties;
4) trespassing upon entering upon or otherwise attending at the Properties;
And IT IS FURTHER ORDERED that the Defendants and each of them their servants or agents or any other person having notice of the said Order
1) do deliver up to the Plaintiff forthwith any keys, alarm codes, locks and any other security and access devices and equipment in respect of the Properties pending the trial of this action;
2) do deliver up to the Plaintiff forthwith all title documents, books and records held in relation to the Properties pending the trial of this action;”
. The Order further goes on to provide for a stay of execution as against any person in occupation of the said properties at the date of the Order until the 30 th of September 2021, in the case of the property comprised in Folio 8095F, and until the 31 st of May 2021, in the case of the property comprised in Folio 54840F. It also made provision for service of the Order on the occupants, gave directions as to the payment of future rent by the occupants, gave directions as to the provision of certain information to the occupants, granted liberty to the occupants to apply, and awarded the costs of the application (to be adjudicated in default of agreement) to the plaintiff against the defendants, with a stay of execution on the order for costs pending determination of the proceedings.
. The facts of this case are set out in extenso in the High Court judgment delivered by Sanfey J. on the 18 th of November 2020 (see [2020] IEHC 677), and I do not find it necessary to reiterate them in detail here. A short summary will suffice in circumstances where the reader can have recourse to the High Court's judgment for greater detail.
. In summary, all three defendants had executed a deed of mortgage and charge in respect of the property in Folio 54840F on the 30 th of July 2004. The first and second named defendants had also executed a deed of mortgage and charge over the property in Folio 8095F on the 1 st of August 2006. Each of these deeds was executed in favour of Ulster Bank (Ireland) Limited (i.e. “Ulster Bank”), and the defendants concerned with each loan received, as joint mortgagors, loans of €185,000 and €225,000 in relation to the respective properties.
. The defendants accepted before the High Court that no payments in respect of monies borrowed had been made since October 2010, and the High Court heard evidence that on the 10 th of July 2013, letters of demand were sent to all three defendants in respect of both loans (although it was later disputed that they had received these letters). In any event, no payment was made on foot of any such demands, and two receivers were appointed on the 23 rd of December 2013.
. The bank's interest in the relevant loan facilities and mortgages was assigned to Promontoria (Finn) Limited (i.e. “PFL”) by way of Loan Sale Deed dated the 23 rd of July 2015, and Deed of Novation dated the 14 th of September, 2015, of which assignment the defendants were placed on notice. PFL discharged the previous receivers on the 27 th of January 2016, appointing the plaintiff, Mr. Ken Fennell, in their place.
. The plaintiff sought to take steps to take possession of the properties with a view to realising the income thereof but was met with resistance and non-co-operation from the defendants. He then issued proceedings against them in the High Court and sought interlocutory injunctive relief by way of a motion returnable for the 25 th of October 2017.
. In a replying affidavit filed by the first named defendant on behalf of all three defendants, it was contended that the defendants had never received the demand letters from Ulster Bank. The plaintiff concluded that he could not contest this.
. PFL then issued fresh letters of demand dated the 28 th of June 2018 and the 4 th of July 2018, respectively, for the full repayment of principal and interest owed by the defendants on the relevant loans as of the date of the applicable letter of demand in each case.
. The plaintiff then discontinued his High Court proceedings on the 9 th of July 2018. Having done so, and by Deeds of Discharge of the same date, PFL then discharged him from his initial appointment as receiver in respect of each of the properties. The defendants were advised of these developments by letters from the plaintiff's solicitors dated the 10 th of July 2018 and were further apprised that in the event of non-payment of the sums demanded the plaintiff would be re-appointed as receiver and would take all necessary steps to realise the properties, and to recover any rents and profits accruing in respect thereof, for the benefit of the receivership.
. Again, notwithstanding the fresh letters of demand, no payments were made, and in those circumstances PFL made a fresh appointment of the plaintiff as receiver over the relevant property in each case, by Deed of Appointment of Receiver dated the 13 th of July 2018.
. Steps taken by the plaintiff as receiver to attempt to enter, take possession of, and collect the income of the properties were met with hostility. The defendants notified the plaintiff of their intention to resist the receivership. Fresh High Court proceedings (i.e. the present proceedings) were then initiated by the plaintiff on the 17 th of September 2018, and shortly thereafter the plaintiff successfully applied for interlocutory injunctive relief, resulting in the orders currently the subject matter of this appeal.
. At the hearing of the interlocutory motion before the High Court, the defendants raised the following points:
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a) That the validity of successive receiverships and of the various receivers that had been appointed, including the plaintiff as the present receiver, had never been established, and that necessary formalities in their appointments had not been observed.
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b) That the transference of loans and securities from Ulster Bank to PFL was flawed, and that the proceedings were statute barred due to the loans falling into arrears on the 1 st of October 2010.
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c) That as there was no evidence that the appropriate stamp duty had been paid on the alleged sale of the relevant loan facilities and securities by Ulster Bank to PFL, the relevant documents were, by virtue of s. 127(4) of the Stamp Duties Consolidation Act 1999, inadmissible as evidence.
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d) That the mortgages were impacted under the “ Tracker Review Process”, which the defendants claimed meant that repossessions could not occur until the review was completed.
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e) That as PFL did not register a charge in their own name over the properties, but rather had been registered as “ owners” of the Ulster Bank Ireland Limited charge, they therefore had no right to recover possession, appoint receivers or sell the properties.
. It was claimed that the plaintiff was not an employee of Ulster Bank or PFL and did not have control of their records, thus references by him to occurrences involving, and production by him of exhibits generated by, Ulster Bank or PFL, prior to his appointment, constituted inadmissible hearsay. As the defendants put it, he was saying “ in effect what someone else told him […]”
. The defendants criticised an affidavit sworn by the director of PFL, Mr. Donal O'Sullivan, on the 10 th of October 2018, which confirmed that the relevant evidence adduced by the plaintiff was true to...
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