Havbell DAC v Hilliard
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 06 December 2019 |
| Neutral Citation | [2019] IEHC 841 |
| Docket Number | [2017 No. 449 S.] |
| Court | High Court |
| Date | 06 December 2019 |
[2019] IEHC 841
THE HIGH COURT
Justice Barr
[2017 No. 449 S.]
AND
Banking & Finance – Loans – Failure to make repayment – Application for summary judgment
Facts: The defendants had entered into loan agreements with Permanent TSB in the period 2003 to 2007. The plaintiff had been assigned the loans and had made a repayment request in 2006. Despite a further demand, the loans were not repaid and the plaintiff now applied for summary judgment. The defendants contested the application alleging issues with the plaintiff’s standing to make repayment demands, the interest rate applied and the sale of security at an undervalue.
Held by the Court, that the application would be granted. The Court was not persuaded that the defendants had made out any grounds that would suffice to resist the application for summary judgment.
This is an application by the plaintiff seeking summary judgment against the defendants in the sum of €1,869,031.90.
The indebtedness of the defendants is alleged to have arisen as a result of six loans furnished to the defendants by Permanent TSB in the years 2003 to 2007. On or about 17th June, 2015, Irish Life and Permanent PLC assigned the debts, the subject matter of the defendants' loans, to the plaintiff. The defendants were notified of the assignment of the loans by letter dated 23rd June, 2015, sent by Capita Asset Services (Ireland) Limited on behalf of the plaintiff. On or about 16th September, 2016, Havbell Limited converted from a private company limited by shares to a designated activity company pursuant to the Companies Act 2014.
The plaintiff alleges that when the defendants failed to make the repayments due under the loans as and when they fell due, the plaintiff by letter dated 29th November, 2016, demanded payment of all sums due and owing on all six facilities. A further demand was made of the defendants by the plaintiff's solicitor by letter dated 9th January, 2017. The plaintiff states that despite these demands, the defendants have failed, refused and neglected to pay the sums due to it.
There are a number of matters that are not in dispute between the parties. The defendants do not dispute that the original loans were drawn down from Permanent TSB. Nor do they dispute that the debt, the subject matter of those loans, was transferred to the plaintiff.
While a number of grounds of defence to this application for summary judgment were set out in the affidavits sworn by the first defendant, and were set out in the written submissions of counsel on behalf of the defendants, at the hearing the defendants resisted the application for summary judgment on the following grounds:
(a) While it was not accepted that there was any default on the part of the defendants in making the repayments due in respect of the loans, it was submitted that if there was any such default, on any particular loan, it was denied that the plaintiff had the right to call in all the loans, either in the circumstances alleged or at all. The defendants do not dispute that the demands as set out above were made of them by the plaintiff, but they dispute the entitlement of the plaintiff to make such demands.
(b) There is a dispute in relation to the interest rates that were applied by both Permanent TSB and the plaintiff on the various loan accounts. In particular, the defendants alleged that the bank acted unlawfully in two respects: firstly, it misapplied a payment made by the defendants of circa €160,000, which was made in 2007, to the wrong account. They applied that payment to the account bearing the lowest rate of interest, whereas it should have been applied to the account bearing the highest rate of interest, which it is alleged would have led to a saving of almost €52,000. Secondly, it is alleged that the interest rates applied to the various accounts are not correctly stated in the statements of accounts used to ground the plaintiff's application for judgment herein. In this regard the defendants rely upon a report from a Mr. Eddie Fitzpatrick dated 27th September, 2017.
(c) It is alleged that the receiver appointed by the plaintiff over certain of the defendants' properties, which had been given as security in respect of certain of the loans, acted unlawfully in two respects: by selling two properties at a gross undervalue and by retaining rents paid by tenants of the various properties and not applying the rents to reduction of the loan accounts.
It is submitted on behalf of the defendants that having regard to these issues of both fact and law, it is not appropriate that the plaintiff be awarded summary judgment in the sum claimed, but instead the matter should be remitted to plenary hearing.
Having regard to the matters that are not in dispute between the parties and to the matters that are in dispute as outlined above, it is only necessary to set out a brief summary of the plaintiff's claim for judgment herein.
The plaintiff's application for judgment is based on a number of affidavits sworn by Mr. Carl Smith, a Director of the plaintiff company. In his first affidavit sworn on 8th September, 2017, Mr. Smith outlined in paragraphs 4 – 15, the six loan accounts held by the defendants with Permanent TSB. The first facility was created by letter of offer dated 20th January, 2003, wherein the defendants accepted a loan of €200,000, which was secured as a mortgage on a property at 145 Emmet Road, Inchicore, Dublin 8. That facility was drawn down to account number 38492303 (hereinafter the “2303 account”). The second loan facility was created by letter of offer dated 30th June, 2003, wherein the defendants accepted a loan from Permanent TSB of €150,000, which was also secured as a mortgage on the property at 145 Emmet Road, Inchicore, Dublin 8. This facility was drawn down to account number 38568133 (hereinafter the “8133 account”).
The third facility was created by letter of offer dated 1st February, 2005, from Permanent TSB, wherein the defendants accepted a loan of €250,000 secured as a mortgage on a property at 2 Woodford Cottages, Palmerstown Village, Dublin 20. It was drawn down to account number 99069597931747 (hereinafter the “1747 account”). The fourth facility was created by letter of offer dated 18th July, 2005, wherein the defendants accepted a loan from Permanent TSB of €150,000, which was also secured against the property at 145 Emmet Road, Dublin 8. The fourth facility was drawn down to account number 99076498294308 (hereinafter the “4308 account”).
The fifth facility was created by letter of offer dated 18th October, 2005, under which the defendants received a loan of €220,000 from Permanent TSB, which was further secured as a mortgage on the property at 145 Emmet Road, Dublin 8. The fifth facility was drawn down to account number 99076490011233 (hereinafter the “1233 account”). The sixth facility was created by letter of offer dated 16th February, 2007, wherein the defendants accepted a loan from Permanent TSB of €1,106,000 secured as a mortgage on a number of properties including, inter alia, 39 Herberton Road, Crumlin, Dublin 12 and 34 Gleneaston Lodge, Leixlip, County Kildare. That facility was drawn down to account number 99076498294308 (hereinafter the “4308 account”).
Mr. Smith averred that all of the loans were subject to the terms of the various letters of offer and the terms and conditions contained therein and in particular the terms and conditions set out in the Letter of Approval, the General Mortgage Loan Approval conditions and the Irish Permanent Mortgage Conditions. He exhibited copies of the various letters of offer and the terms and conditions attaching to each loan.
On or about 17th June, 2015, Irish Life and Permanent PLC transferred to the plaintiff a number of loans, including the loans outlined above which had been made by Permanent TSB to the defendants. The defendants were notified of the assignment of their loans by letter dated 23rd June, 2015, sent by Capita Assets Services (Ireland) Limited on behalf of the plaintiff. On 16th September, 2016, Havbell Limited converted from a private company limited by shares to a designated activity company pursuant to the Companies Act 2014. The defendants do not challenge the assignment of the debts to the plaintiff.
Mr. Smith has sworn at paragraph 19 et seq. that in breach of the terms of the first to sixth facilities the defendants had, since in or about June 2011, periodically failed to make the required repayments on the first, second, fourth and fifth facilities. By letter dated 29th November, 2016, the plaintiff demanded payment of the sums due and owing on all of the six facilities pursuant to the “all sums due” nature of the said facilities. He exhibited a copy of the letters of demand. By further letter dated 9th January, 2017, the plaintiff through its solicitor wrote to the defendants seeking immediate repayment of the amount then due and owing as of 29th November, 2016. He exhibited a copy of the correspondence from the plaintiff's solicitor.
He went on to state that despite the terms of the letters of demand, the defendants had failed, refused and neglected to pay the sums due on foot of the said loan accounts. He exhibited statements of account for each of the loan facilities.
In a supplemental affidavit sworn on 22nd February, 2019, Mr. Smith gave an overview of the accounts as of 25th February, 2019. In relation to the account bearing Havbell account number 80000324, the last payment of any kind was made to this account in the sum of €162,894 on 6th June, 2017. That was the proceeds of sale from 145 Emmet Road, Inchicore, Dublin 8. As of 25th February, 2019, the arrears on the account stood at €49,049.17. The...
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