Hayes v Geary and Another
| Jurisdiction | Ireland |
| Judge | Mr. Justice Dignam |
| Judgment Date | 24 August 2023 |
| Neutral Citation | [2023] IEHC 517 |
| Court | High Court |
| Docket Number | [Record No.] 2016 6977P |
[2023] IEHC 517
[Record No.] 2016 6977P
THE HIGH COURT
Joinder – Lites pendentes – Vacation – Applicants seeking an order joining them as notice parties – Whether lites pendentes ought to be vacated
Facts: The plaintiff, Mr Hayes, sought, inter alia: (1) a declaration that 33% of the interest of the defendants, Mr and Ms Geary, in the land/property comprised in folios LK20694, LK17989, LK2754F, LK2695F, LK2698F, LK51611F, LK2637F, LK2575F, LK769 is legally and beneficially owned by the plaintiff; (2) a declaration that 51% of the land/property comprised in folios LK28064F and LK6565F is legally and beneficially owned by the plaintiff; (3) that 70% of the land/property comprised of in folio LK47201F and LK39758F is legally and beneficially owned by the plaintiff; (4) a declaration that 60% of the land/property comprised in folio LK21783F, LK35115F and LK41823F is legally and beneficially owned by the plaintiff; (5) an order prohibiting the defendants from holding themselves as the full owners of all the land/property; (6) an order prohibiting any agent of the defendants holding themselves as agents of the owners of all the land/property; (7) an order prohibiting the defendants and their agents from entering into any contracts for the sale of any of the land/property; (8) an order compelling the defendants, their agents and all persons acting in concert with them from interfering with and/or attempting to frustrate, harass or intimidate the plaintiff’s interest in the land/property. The applicants, Seaconview DAC and Mr Taite, applied to the High Court for the following reliefs: (1) an order pursuant to Order 15, Rule 13 of the Rules of the Superior Courts and/or the inherent jurisdiction of the court joining the applicants as notice parties to the proceedings for the sole and limited purpose of applying for an order vacating the lites pendentes registered by the plaintiff on 25 January 2017 in respect of the properties comprised in folios LK2575F, LK2637F, LK51611F, LK2698F, LK769, LK59725F, LK2745F, LK20694, LK17989 and LK2695F; (2) an order pursuant to s. 123 of the Land and Conveyancing Law Reform Act 2009 and/or the inherent jurisdiction of the court vacating the lites pendentes. It was the applicants’ case that Seaconview DAC, by virtue of being the registered owner of security (in the form of legal charges over six of the folios and equitable liens over the other four folios), and Mr Taite as the receiver over five of the properties, were persons affected by the lites pendentes.
Held by Dignam J that the applicants were persons affected by the lites pendentes by virtue of being the registered owner of the charges (or the receiver appointed by the registered owner under the provisions of the charge) or as the holder of the liens (whose interest in the liens was noted on the relevant folios). In all of the circumstances, Dignam J was satisfied that there had been unreasonable delay on the part of the plaintiff and that the action was not being prosecuted bona fide. Dignam J found that the existence of a discretion to refuse to vacate the lites pendentes even if satisfied that one or both of the grounds in s. 123 are met appeared incongruous with a finding that the action was not being prosecuted bona fide. Dignam J had previously addressed the claimed property rights. Even if Dignam J had such a discretion, it did not seem to him that the circumstances were such as to call for or justify the exercise of that discretion to refuse to grant the relief sought.
Dignam J made an order joining the applicants as notice parties for the purpose of applying to vacate the lites pendentes and made an order vacating the lites pendentes in terms of the notice of motion.
Application granted.
Judgment of Mr. Justice Dignam delivered on the 24 th day of August 2023 .
This judgment concerns an application by Seaconview DAC and Mr. Declan Taite for the following reliefs:
“1. An Order pursuant to Order 15, Rule 13 of the Rules of the Superior Courts and/or the inherent jurisdiction of the Court joining the Applicants as Notice Parties to the proceedings for the sole and limited purpose of applying for an order vacating the lites pendentes registered by the Plaintiff on 25 January 2017 in respect of the properties comprised in Folios (i) LK2575F, (ii) LK2637F, (iii) LK51611F, (v) LK2698F, (v) LK769, (vi) LK59725F, (vii) LK2745F, (viii) LK20694, (ix) LK17989 and (x) LK2695F.
2. An Order pursuant to Section 123 of the Land and Conveyancing Law Reform Act, 2009 and/or the inherent jurisdiction of the Court vacating lites pendentes registered by the Plaintiff on 25 January 2017 in respect of the properties comprised in Folios (i) LK2575F, (ii) LK2637F, (iii) LK51611F, (v) LK2698F, (v) LK769, (vi) LK59725F, (vii) LK2745F, (viii) LK20694, (ix) LK17989 and (x) LK2695F.”
Seaconview DAC (“Seaconview”) is registered on some of these Folios (LK2575F, LK2637F, LK51611F, LK769, LK59725F, and LK2698F) as the owner of a charge over the lands in the Folios. Seaconview's interest in liens pursuant to section 73(3) of the Registration of Deeds and Title Act is noted on the other Folios (LK20694, LK2745F, LK17989, and LK2695F). Mr. Taite is a receiver appointed by Seaconview in respect of the lands over which Seaconview is registered as having a charge other than the lands in Folio LK2698F.
As noted in the relief sought, the lites pendentes were all registered by the plaintiff on the 25 th January 2017. This was done on foot of proceedings which were issued by the plaintiff by Plenary Summons of the 29 th July 2016. The nature and background of these proceedings are important and I will have to return to them in detail.
As is clear from the relief set out above, Seaconview and Mr. Taite (“the applicants”) seek to be joined as notice parties to the proceedings solely for the purpose of applying pursuant to section 123 of the Land and Conveyancing Act 2009 to have the lites pendentes vacated and also seek an order vacating the lites pendentes. The application is opposed by the plaintiff (who registered the lites pendentes) and, in what is a very unusual feature of the case, by the defendants. In fact, the only appearance at the hearing before me and, I understand, at an earlier hearing, was by the first-named defendant.
By a facility letter of the 5 th August 2009 Ulster Bank Ireland Limited (“Ulster Bank”) agreed to advance to the defendants three loan facilities in the total sum of €973,000.
On the 5 th November 2008 Ulster Bank agreed to loan the defendants' daughter the sum of €260,000 and a further sum of €40,000. By written guarantee dated the 29 th May 2008 the defendants agreed to discharge, on demand, their daughters' liabilities on foot of these loans, up to a maximum sum of €295,000.
The defendants executed a number of legal mortgages over six parcels of land in favour of Ulster Bank and deposited the land certificates with Ulster Bank in respect of the remaining four properties as security for their liabilities to Ulster Bank. The parcels of lands in respect of which mortgages were executed were Folios LK2575F, LK2637F, LK51611F, LK769, LK59725F, and LK2698F and the lands in respect of which the land certificates were deposited were those in Folios LK20694, LK2745F, LK17989 and LK 2695F.
It is not entirely clear whether these matters are disputed by the defendants but I do not need to resolve this in light of the arguments that were pursued.
Ulster Bank's ownership of the mortgages was registered on the respective folios on the following dates:
(i) LK2575F – 18 th October 2004
(ii) LK2637F – 18 th October 2004
(iii) LK51611F – 30 th June 2008
(iv) LK769 – 16 th October 2006
(v) LK59725F – 8 th January 2008
(vi) LK2698F – 25 th April 2008
Ulster Bank's liens pursuant to 73(3) of the Registration of Deeds and Title Act 2006 on foot of the deposit of the land certificates were registered on the relevant folios as follows:
(i) LK20694 – 7 th May 2009
(ii) LK2745F – 7 th May 2009
(iii) LK17989 – 7 th May 2009
(iv) LK2695F – 7 th May 2009
It is deposed in the grounding affidavit sworn on behalf of the applicants that by Irish Law Deed of Transfer dated the 23 rd October 2015, Ulster Bank transferred the benefit of the loans (including the loans advanced to the defendants' daughter) and the guarantee to Seaconview and by a Land Registry Form 56 (Transfer of Charges) Ulster Bank transferred to Seaconview all “its rights, title, interest, benefit and obligations (both present and future) (in the charges, particulars of which are set out in the Schedule hereto.” Seaconview's ownership of the charges was registered on the 2 nd February 2016 and their interest in the various liens was noted on the 18 th September 2017. An issue subsequently arose about whether the loans were in fact transferred to Seaconview at a hearing before Egan J when it emerged that, while the relevant charges were identified in the Deed of Transfer, the loan agreement which had been relied upon by Seaconview (the loan of the 6 th August 2009) was not identified in the relevant part of the Deed of Transfer. This issue now forms a core part of the dispute between the parties. I explain this further in the section dealing with the procedural history.
By letter of the 4 th November 2015, a servicing agent on behalf of Seaconview wrote to the defendants, referring to their “ loan facilities with Seaconview Limited (formerly your loan facilities with Ulster Bank Limited)…” and went on to state “Ulster Bank wrote to you recently to inform you that the Facilities noted above including the facility letter(s), guarantee(s), security documents and rights relating to the Facilities (the “Finance Documents”) have been sold to Seaconview Limited. This transfer has now taken...
To continue reading
Request your trial