ICS Building Society v Grant

• Jurisdiction: Ireland
• Judge: Mr Justice Charleton,
• Judgment Date: 26 January 2010
• Neutral Citation: [2010] IEHC 17
• Docket Number: No. 679 S/2009
• Court: High Court
• Date: 26 January 2010

ICS Building Society v Grant

Between:

ICS Building Society

Plaintiff

And

David Grant

Defendant

[2010] IEHC 17

No. 679 S/2009

The High Court

CONTRACT

Terms

Loan - Mortgage as security - Arrears - Repossession - Sale of land - Claim for balance of loan - Best price reasonably obtained - Legally enforceable contract - Reckless lending - Mutual intention - Whether plaintiff's claim to recover balance unfair - Whether plaintiff acted negligently in selling property - Whether defendant required to repay loan - Whether contract legally enforceable - Whether lending reckless - Whether tort of reckless lending existed - Constitution of Ireland 1937, article 50 - Judgment entered (2009/679S - Charleton J - 26/1/2010) [2010] IEHC 17

ICS Building Society v Grant

1 Judgment of Mr Justice Charleton, delivered on the 26th day of January 2010

Mr Justice Charleton,

2 In 2002 the Defendant bought an investment property in the countryside near Newtownmountkennedy in County Wicklow. It consists of a house and some land, which he might have thought had potential to be turned into a housing estate. It is accessed by a narrow laneway over a neighbouring property by way of a right of way. He paid €293,000, or €372,033.26. He then borrowed money from the Plaintiff. The first borrowing was on 29 October 2003 for €788,000 and the second was on 17 November 2004 for €92,000. These were secured by mortgage over the property. I note that in the loan offer of the 19 October, the Plaintiff bank valued the property for mortgage purposes at €1,100,000 and for insurance purposes at €500,000. By May 2007, the Defendant had an arrears balance of €22,679.37 and a redemption balance of €811,028.66. Perhaps the Defendant should then have sold the property in a market that was then over-buoyant, but he did not. The bank reposed it in December 2008, having been granted an order subject to a stay of four months by Dunne J. on the 7^th of July 2008. The plaintiff bank sold the property in September 2009 for €355,000. There were three interested parties, but that is the best price that could be obtained. Then, because the loan merely was merely secured by the mortgage, the plaintiff bank sought judgment in the Master's Court for the balance. Despite waiving a period of 9 months of interest, the indebtedness came to €1,007,102.89 less the gross sale proceeds and adding on the cost of clearing out the property, the Defendant now owes the Plaintiff bank €663,059.62. The Master issued judgment in the larger amount on 9 June 2009, before the sale of the property. The Defendant appealed that order, out of time, by a notice of motion dated the 7 December 2009.

3 Firstly, I am satisfied that the loan papers disclose just that. The monies borrowed by the Plaintiff are subject to a contract by him to repay it. It is not accurate to claim that by entering into a mortgage deed with a bank that a borrower has thereby secured a promise that the bank will, in the event of default, simply secure possession of the property and sell it for what it may be then worth, taking whatever the proceeds are and surrendering the rest of the debt. Such a contract is possible. That is not the contract here. Nor is there any suggestion that the express words of the loan contracts and security by way of mortgage deed in this case were varied by an express collateral undertaking. Were that oral, the rule whereby the entirety of a carefully drafted written contract is presumed to be the agreement between the parties would have to be overcome. Such an assertion would, as well, suffer from the infirmity of recollection and the conscious and unconscious desire of those lending...