Gibb v Promontoria (Aran) Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Tony O'Connor |
| Judgment Date | 12 July 2016 |
| Neutral Citation | [2016] IEHC 521 |
| Docket Number | [RECORD NO. 2016\1707P] |
| Court | High Court |
| Date | 12 July 2016 |
[2016] IEHC 521
THE HIGH COURT
O'Connor Tony J.
[RECORD NO. 2016\1707P]
AND
Banking & Finance – Non-repayment of loan – Assignment of loan facilities and mortgage – Swap arrangement – S. 28(6) of the Supreme Court's Judicature Act 1877 – Interlocutory injunction – Damages
Facts: The plaintiff sought an interlocutory injunction to restrain the defendants from interfering with the properties pending the determination of the proceedings issued by the plaintiff against the bank. The plaintiff disputed the assignment of the plaintiff's facilities and mortgages with the bank to the first named defendant. The plaintiff alleged that the first named defendant obtained the benefits and obligations of the swap arrangements between the bank and the plaintiff, which in turn, had the effect of reducing or allowing a set off of the sums due by the plaintiff. The plaintiff contended that the assignment of the plaintiff's debt to the bank to the first named defendant was invalid as the requirements of s. 28(6) of the Supreme Court's Judicature Act 1877 were not complied.
Mr. Justice Tony O'Connor refused to grant the interlocutory injunction sought by the plaintiff and gave liberty to the plaintiff to deliver a statement of claim in the present proceedings. The Court held that the dispute between the second and third named defendants and the plaintiff regarding the plaintiff's primary residence on the property had not been properly addressed for the Court to make a determination at the interlocutory stage. The Court held that the plaintiff had not convinced the Court that it was not indebted to the bank for the principal. The Court found that there was a clear evidence of notification in writing of the assignment and hence, the argument based on s. 28(6) of the 1877 Act was weak. The Court found that there had been no reason offered by the plaintiff as to why the second and third named defendants should not proceed to recover the rents and outgoings from the properties.
In this judgment the Court determines the application for an interlocutory injunction made on behalf of the plaintiff seeking to restrain the defendants from interfering with 54 New Road, Clondalkin, (‘ the Clondalkin property’) Dublin 22 and Unit 1 at 1-3 the Coombe (‘ the Coombe property’) Dublin 8 pending the determination of proceedings issued by the plaintiff against Ulster Bank Ireland Limited (‘ Ulster’) on 11th December, 2012.
The plaintiff herself issued the Plenary Summons and Notice of Motion on 25th February, 2016 following receipt of letters of demand to repay facilities dated 8th February, 2016 and the appointment of the first named defendant (‘ PAL’) of the second and third named defendants as receivers (‘ the Receivers’) over the Clondalkin property and the Coombe property.
Following the initial return date for this application a solicitor came on record for the plaintiff around 11th May, 2016. The present solicitor on record, Mr. Paul Kelly, filed and served a notice of change of solicitor on 9th June, 2016 and he has instructed Ms. Sallar as counsel for the plaintiff. Therefore, the original Endorsement of Claim and the terms of the Notice of Motion issued had no input from Mr. Kelly or Ms. Sallar. Nevertheless, following the outline of the application last Thursday, the Court requested Ms. Sallar to serve and file written legal submissions that evening with a view to focusing on the issues of facts and law relevant to an interlocutory injunction application. The Court now has the benefit of those written submissions along with the earlier written submissions prepared by Ms. McGrath for the defendants together with the oral exchanges last Friday.
The plaintiff, in her 2012 Statement of Claim, alleged that she was induced to enter into two interest rate swaps or hedging products on 3rd March, 2008 and 20th June, 2008. The plaintiff alleged that the purpose of the borrowings was for private and domestic purposes. Ms. Sallar submitted that an interest rate swap is a financial instrument known as a contract for difference. She stated that it is a contract to exchange sums of money on a quarterly basis calculated by reference to a notional sum. Each financial instrument has a value to the bank in the calculation of its capital reserves. Essentially, the foundation of the plaintiff's claim in her 2012 proceedings against Ulster is that the 2008 swap arrangements were subject to the European Communities (Markets in Financial Instruments) Regulations 2007 which were introduced pursuant to the similarly named Directive 2004\39\EC.
Ms. Sallar further submitted that the consequence of the swap arrangement was that the plaintiff's obligation to pay Ulster under her 2007 loan facility for some €745,000 shifted to the 2008 swap arrangement.
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Gibb v Promontoria (Aran) Ltd
...Dublin 8. Her application was refused for reasons stated by O'Connor J. in his ex tempore judgment delivered on the 12th July 2016 [2016] IEHC 521, and she now appeals to this Court against that 2 Promontoria purchased two loans which the appellant and other borrowers previously obtained f......