Gibb v Promontoria (Aran) Ltd
| Jurisdiction | Ireland |
| Judge | Ms. Justice Máire Whelan,MR JUSTICE MICHAEL PEART |
| Judgment Date | 12 March 2018 |
| Neutral Citation | [2018] IECA 95 |
| Date | 12 March 2018 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Neutral Citation Number: [2018] IECA 95 Record Number: 2016 No. 418 |
[2018] IECA 95
THE COURT OF APPEAL
Peart J.
Whelan J.
Peart J.
Hogan J.
Whelan J.
Neutral Citation Number: [2018] IECA 95
Record Number: 2016 No. 418
AND
Injunctive relief – Properties – Loans – Appellant seeking injunctive relief to restrain the respondents from interfering with two properties – Whether letters of demand dated 15th February 2016 were valid
Facts: The first respondent, Promontoria, purchased two loans which the appellant, Ms Gibb, and other borrowers previously obtained from Ulster Bank, and appointed the second and third respondents, Mr Hanratty and Mr Taite, as receivers over two properties, namely 54, New Road, Clondalkin, Dublin 22, and Unit 1, 1-3 The Coombe, Dublin 8, on the 15th February 2016, having failed to obtain repayment of the loans within the time specified in letters of demand which issued on the 8th February 2016. Part of the security provided for those loans was a mortgage over the properties. The receivers wished to gain possession of the properties so that the proceeds could be applied in reduction of sums claimed to be due to Promontoria under the two loans purchased from Ulster Bank. The appellant applied to the High Court seeking injunctive relief to restrain them. Her application was refused on the 12th July 2016 and she appealed to the Court of Appeal against that refusal. At the hearing of the appeal, counsel for the appellant distilled the key grounds of appeal down to four major points: (i) was the appellant "a consumer" when entering into 2007 and 2008 Facility agreements?; (ii) were the 2007 and 2008 agreements procured on foot of actionable misrepresentations on the part of Promontoria's predecessor?; (iii) the relevance of the claim that Ms Gibb sold her home at an undervalue during the great economic crisis thereby losing her security of tenure in the belief that the net proceeds would be sufficient to redeem the loans only to find that a penalty of €118,000 was being demanded for early redemption which she was unable to discharge; (iv) whether the letters of demand dated 15th February 2016 were valid? The respondents objected that a number of new grounds of appeal were being advanced by the appellant, in particular the new issue as to whether Ms Gibb was a "consumer" pursuant to the Consumer Credit Act 1995, which were not expressly raised or argued before the High Court at the interlocutory hearing.
Held by Whelan J that there existed no fair and bona fide question to be tried which would warrant the granting of the very broad interlocutory relief sought. Whelan J noted that the plenary summons issued on the 25th February 2016 and that no meaningful steps had been taken by the appellant to date to progress the litigation to a conclusion; no statement of claim had yet been served. Whelan J held that should her claims prevail at plenary hearing she would be amply compensated in damages.
Whelan J held that she would refuse to allow the new grounds of appeal to be introduced. Otherwise, Whelan J would not interfere with the discretion exercised by the trial judge and would dismiss the appeal.
Appeal dismissed.
In the High Court, the appellant sought injunctive relief to restrain the respondents from interfering with two properties, namely 54, New Road, Clondalkin, Dublin 22, and Unit 1, 1-3 The Coombe, 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 refusal.
Promontoria purchased two loans which the appellant and other borrowers previously obtained from Ulster Bank, and has appointed the second and third named respondents as receivers over the Clondalkin and Coombe properties on the 15th February 2016, having failed to obtain repayment of the loans within the time specified in letters of demand which issued on the 8th February 2016. Part of the security provided for these loans was a mortgage over the properties. The receivers wish to gain possession of the properties so that the proceeds can be applied in reduction of sums claimed to be due to Promontoria under the two loans purchased from Ulster Bank, hence the appellant's application for injunctive relief to restrain them. I should add that by the date of commencement of her proceedings in the High Court the appellant had ceased making any repayments on foot of these loans.
One of the issues raised by the appellant in her proceedings relates to the interest rate applied to the loans. While not explicitly stated by the trial judge, it seems to me that he was prepared to accept that an issue arose in relation to the amount of interest charged on the loans, but was clear also that this issue was not sufficient to justify the granting of an interlocutory injunction since, in the event that the appellant was successful at hearing in relation to the interest issue it could be dealt with by a monetary adjustment in the amount to which Promontoria would be entitled to recover. The trial judge was not satisfied that she had raised any such fair issue in relation to her liability to repay the principal. She had raised certain technical issues relating to assignment of the debt to Promontoria by Ulster Bank, and in relation to the appointment of the receivers. I have no doubt that the trial judge was correct in this regard, and they were not pursued on this appeal.
In order to satisfy the requirement in Campus Oil Limited v. Minister for Industry and Energy (No 2) [1983] IR 88 a plaintiff seeking an interlocutory injunction must first of all raise a fair issue to be tried. If that requirement is met the Court will move to the question of whether damages can be an adequate remedy. If not, then an interlocutory injunction will normally be granted. But even where damages are an adequate remedy the Court will consider where the balance of convenience lies. Strictly speaking, where no fair issue was considered to have been raised against the claim for the principal monies owing under the loans, it was unnecessary for the trial judge to consider the issue of the balance of convenience. Nevertheless, he appears to have done so by addressing an argument made by the appellant that the Clondalkin premises comprises her home (a claim disputed by the respondents).
The trial judge concluded that 'ultimately, the plaintiff's claim is all about money and potential damages due'. He went on to state, as appears at paras. 18-19 of his ex tempore judgment:
'18. If the plaintiff succeeds in her claim against Ulster no question has been raised as to Ulster's ability to pay that sum. Similarly, if the plaintiff succeeds in her claim that [Promontoria] was not assigned the entire of the debt due by her to Ulster or that [Promontoria] was only assigned a portion, the ultimate figure may be adjusted in the final reconciliation of the receivership account. In other words, damages will be an adequate remedy and the Court finds no merit in the suggestion that the damages which the plaintiff may claim are not ascertainable.
19. The plaintiff has alluded in her affidavits to her impoverished state and the necessity for her to return to work to pay her living expenses when she had hoped to retire at this stage in her life. In those circumstances, and without any potential for an assurance about the re-commencement of repayments under the loan facility by the plaintiff, it seems to the Court that the balance of convenience favours the defendants in refusing the wide ranging order sought in restraining any activity by them as receivers. The receivers following this determination may proceed to secure the properties for the benefit of [Promontoria] and any interest which the plaintiff may have depending on her success in her claims against Ulster in the 2012 proceedings and [Promontoria] in these proceedings. No reason has been offered by the plaintiff as to why the receivers should not now proceed, as in other receiverships, to take in an account in the usual way for rents and outgoings.'
I should refer briefly to the 2012 proceedings to which the trial judge referred in his para. 19. The 2012 proceedings to which the trial judge referred were commenced by plenary summons which issued on the 11th December 2012, and in which Ulster Bank Ireland Ltd is the sole defendant. For some reason she issued two such plenary summonses on that day, each naming Ulster Bank Ireland Ltd as sole defendant and containing identical reliefs. She issued these summonses personally (in other words no solicitor is named therein as acting for her), and one can safely presume that she also drafted same. These summonses were served on the same date as they were issued, but the appellant has failed to further prosecute those proceedings. The general indorsements of claim in each describe her claim as being one for €1,000,000 damages, plus aggravated damages for the 'gross negligence and misrepresentation orchestrated by Ulster Bank Ireland Ltd, and its servants or agents'. The basis for such relief is a claim by her that the bank breached 'liquidity laws which has caused the financial collapse', but for which she could, and would, have made different financial decisions. She alleges also that due to excessive securitisation the banks created a false "boom and bust" situation which crippled this country, and further that reckless lending practices by the bank ignored its own banking guidelines in breach of the consumer protection code. In addition to damages she included a claim for a declaration that her mortgage with the bank was null and void, and its removal from her title.
As I have said, those 2012 proceedings have not been...
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