Halpin and Others v Everyday Finance DAC and Others, Stairway Property Company Ltd v Halpin and Others

• Jurisdiction: Ireland
• Judge: Ms Justice Nessa Cahill
• Judgment Date: 08 April 2025
• Neutral Citation: [2025] IEHC 201
• Court: High Court
• Docket Number: Record Number 4748 P

Patrick Halpin, Ann Keane, Elektron Holdings Limited

Plaintiffs

and

Everyday Finance DAC, Stairway Property Company Limited, The Attorney General and Ireland

Defendants

Between:

Stairway Property Company Limited

Plaintiff

and

Patrick Halpin, Ann Keane, Elektron Holdings Limited (In Receivership) and Madison Manor Limited

Defendants

[2025] IEHC 201

Record Number 4748 P

Record no. 5300 P

THE HIGH COURT

Constitutional challenge – Power of sale – Possession – Plaintiffs challenging s. 19(1) and (21) of the Conveyancing Act 1881 – Whether the licence claim was barred

Facts: Two cases were heard together in November and December 2024 concerning the ownership and occupation of a property at Park Avenue, Sandymount in Dublin 4 (Aberdeen Lodge). The first case was a constitutional challenge to s. 19(1) and (21) of the Conveyancing Act 1881 arising from the fact that the property was sold by the first defendant, Everyday Finance DAC (Everyday), to the second defendant, Stairway Property Company Ltd (Stairway), without engagement with the plaintiffs, Mr Halpin, Ms Keane and Elektron Holdings Ltd (the constitutional plaintiffs), or court oversight. Additional claims were made including a claim of a right to a licence, right to reside, life estate or other equitable interest in the property. The second case was an application by the plaintiff, Stairway, for possession of Aberdeen Lodge. The defendants, the constitutional plaintiffs and Madison Manor Ltd (the Halpin defendants), issued a counterclaim against Everyday challenging the manner in which the property was sold and seeking an order setting aside that sale.

Held by Cahill J that Everyday did have good title to the property from 19 May 2023, a valid demand was issued for the purpose of s. 20(i) of the 1881 Act, and the statutory criteria for exercising the power of sale in s. 19 were met. Regarding the constitutional challenge, she held that Article 40.5 of the Constitution and Article 8ECHR were not applicable and reliance on the doctrine of proportionality was misplaced. She held that the licence claim was barred by Henderson v Henderson [1843] 3 Hare 100 and by the doctrine of estoppel. She was satisfied that the question of beneficial title was not relevant to the possession proceedings. She rejected the Halpin defendants’ contention that the relief sought should be dismissed on the basis of the disclosure of the beneficial interest of Mr Ryan and his failure to give evidence. She rejected the contention that the fact of the making or existence of the receiver possession order was a bar, or otherwise relevant, to the possession proceedings. She held that the attempt to claim that a proportionality test applied to the possession proceedings was an abuse of process.

Cahill J dismissed the constitutional challenge, held that Stairway was entitled to the orders sought at paragraphs 1, 2, 3, and 4 of the plenary summons in the possession proceedings (subject to the deletion of the reference to “beneficial” ownership in paragraph 1 and the correction of an identified error in paragraph 4), and dismissed the counterclaim in the possession proceedings.

Orders in constitutional challenge refused. Orders in possession proceedings granted.

JUDGMENT ofMs Justice Nessa Cahilldelivered on 8 April 2025

Introduction

1 This judgment concerns two cases which were heard together in November and December 2024 (“ the Proceedings”). They both concern, in broad terms, the ownership and occupation of a property at Park Avenue, Sandymount in Dublin 4 known as “ Aberdeen Lodge” which consists of a sixteen-bedroom guesthouse and private residential accommodation (“ Aberdeen Lodge” or “ the Property”).

2 The first case is a constitutional challenge to sections 19(1) and 19(21) of the Conveyancing Act 1881 (“ the Act of 1881”) which was issued on 28 September 2023 in which the Plaintiffs seek various orders challenging, and arising from the challenge to, the constitutionality of those provisions (“ the Constitutional Challenge”). In broad terms, the Plaintiffs in the Constitutional Challenge (“ the Constitutional Plaintiffs”) claim that the power to sell a family home without court control or notice or engagement with the family residing in the Property is unconstitutional (among other claims). This challenge is made arising from the fact that the Property was sold by the entity then-entitled to the mortgage over it, Everyday Finance DAC (“ Everyday”), to Stairway Property Company Limited (“ Stairway”) without such engagement with the Constitutional Plaintiffs or court oversight. Additional claims are also made in those proceedings, including a claim of a right to a licence, right to reside, life estate or other equitable interest in the Property (“ the Licence Claim”).

3 The second case is an application for possession of Aberdeen Lodge, which issued on 2 November 2023, some five weeks after the Constitutional Challenge (“ the Possession Proceedings”). In these proceedings, Stairway seeks various orders intended to secure possession of the Property and related matters. The Defendants to those Proceedings, the Constitutional Plaintiffs together with another entity, Madison Manor Limited (“ Madison”) (referred to together in this Judgment as “ the Halpin Defendants”), issued a counterclaim against Everyday challenging the manner in which the Property was sold and seeking an order setting aside that sale.

4 The Proceedings were heard together between 26 November 2024 and 6 December 2014 and three witnesses gave evidence: Mr Halpin, Mr Gareth Keogh (for Everyday); and Mr Brian Egan (for Stairway).

5 The following are addressed in this Judgment:

Relevant Facts

Introductory Matters

Power of Sale

Constitutional Challenge

Preliminary objections

Henderson v. Henderson

Locus Standi

Futility objection

Frivolous and vexatious objection

Estoppel

Provisions of the Constitution and ECHR Relied Upon

Presumption of Constitutionality

Article 40.5

Article 8, ECHR

“ Housing Loan”

Doctrine of Proportionality

The Licence Claim

Preliminary objections

Henderson v. Henderson

Estoppel as a defence

Evidence concerning the Licence Claim

Additional submissions regarding the Licence Claim

Reliance on estoppel by the Constitutional Plaintiffs

Possession Proceedings

Pleadings

Issues in the Possession Proceedings

Interests of Mr Ryan

Relevance of the Receiver Possession Order

Proportionality

Obligation to obtain the best price

Other Claims Advanced

Obligation to act reasonably

Public policy, common good

Conclusions

Relevant Facts

6 This section of the Judgment summarises facts which are not in dispute or, where they are, to identify that factual contest.

Acquisition and occupation of the Property

7 According to the case as pleaded by the Constitutional Plaintiffs, Elektron Holdings Limited (the third Plaintiff in the Constitutional Challenge and third Defendant in the Possession Proceedings, “ Elektron”) acquired the Property in 1989.

8 Elektron was solely owned by Mr Halpin and was then owned by Ms Keane from 2012 / 2014 (there is some ambiguity in the pleadings in this respect) until August 2021 when the shares were transferred to Madison Manor Limited (the fourth Defendant in the Possession Proceedings, “ Madison”).

9 Madison, the entity which carries on the hotel business at the Property, is solely owned by Ms Keane. She is also its director and Mr Halpin is its company secretary.

10 Mr Halpin has occupied the Property since 1990, when he was married to his first wife and resided there with her and their children. Ms Keane has resided there with him since 1997. Their two children (ages 11 and 17) reside there also. Mr Halpin and Ms Keane got married a week before the hearing of the Proceedings. It is not in dispute that the Property is the principal primary residence of the family (although it is denied that they are lawfully in occupation).

The Loans and Mortgages

11 Between 1998 and 2009, Elektron (and Crossplan Investment Limited, another company owned and/or controlled by Mr Halpin and Ms Keane) took out a series of eleven loans with Irish National Building Society (“ INBS”) (“ the Loans”), which amounted to c €25 million.

12 The Loans were secured by mortgages on the Property (“ the Mortgages”). This was done by the conveyance of the fee simple to INBS subject to Elektron's equity of redemption.

13 The Loans and Mortgages were transferred from INBS to Anglo Irish Bank Corporation plc (which later became Irish Bank Resolution Corporation, “ IBRC”) and the liquidators of IBRC then sold them to Kenmare Property Finance Limited (“ Kenmare”), on 23 May 2014.

14 Kenmare sold the Mortgages to Pepper Finance (Ireland) DAC (“Pepper”), on 11 September 2020. Pepper then entered a global deed of transfer with Everyday Finance DAC (“ Everyday”) on 19 May 2023, which included the transfer of the Mortgages.

15 There was evidence and submissions during the hearing before me about the background to, and purpose of, the Loans and about investments in, and sales of, other properties.

16 This history and background have been addressed comprehensively in the judgments delivered in the Prior Litigation. Save to the extent that it is directly relevant to the issues I have to decide, this background is not re-visited or repeated in this Judgment.

Sale to Stairway

17 On 11 September 2023, Everyday conveyed the Property without vacant possession to Stairway Property Company Limited (“ Stairway”), relying on the power of sale contained in section 19 of the Conveyancing Act 1881 (“ the Act of 1881”).

18 On 12 September 2023, Stairway's solicitors wrote to Mr Halpin, Ms Keane, Madison and the occupants of Aberdeen Lodge notifying them that Stairway had acquired the freehold interest in the Property and calling on them to immediately undertake to vacate the Property within 14 days.

19 No response was...