IIB Home Loans Ltd (Formerly Irish Life Home Loans Ltd) v Beades

• Jurisdiction: Ireland
• Judge: Ms. Justice Costello
• Judgment Date: 29 June 2018
• Neutral Citation: [2018] IEHC 390
• Docket Number: [2006 No. 623 S.P.]
• Court: High Court
• Date: 29 June 2018

[2018] IEHC 390

THE HIGH COURT

Costello J.

[2006 No. 623 S.P.]

BETWEEN

I.I.B. HOME LOANS LIMITED (FORMERLY IRISH LIFE HOME LOANS LIMITED)

PLAINTIFF

AND

JERRY BEADES

DEFENDANT

Execution order – Amending title – Order for possession – Plaintiff seeking an order granting leave to issue an execution order – Whether the order for possession had not been assigned

Facts: The plaintiff applied to the High Court seeking an order pursuant to O. 42 r. 24 of the Rules of the Superior Courts granting leave to issue an execution order pursuant to an order dated 23rd June, 2008 and an order amending the title of the plaintiff from IIB Home Loans Ltd to KBC Bank Ireland Plc. By statutory instrument no. 125 of 2009 the Minister for Finance approved a scheme of transfer by KBC Mortgage Bank to KBC Bank Ireland Plc dated 26th February, 2009. The defendant, Mr Beades, submitted that the statutory instrument did not transfer the order for possession made in these proceedings in May, 2008 and therefore the existing plaintiff, IIB Home Loans Ltd, had not proved that the order for possession had been transferred to the intended plaintiff, KBC Bank Ireland Plc. The main ground upon which the defendant opposed the grant of leave to issue an execution order to the plaintiff was that an order for possession was not assignable and the order for possession in this case as a matter of fact had not been assigned.

Held by Costello J that, in the interests of clarity and legal certainty, she would order pursuant to s. 41 of the Central Bank Act 1971 and S.I. 125 of 2009 that the title of the proceedings be amended and that KBC Bank Ireland Plc be substituted for IIB Home Loans Ltd as plaintiff in these proceedings. Costello J noted that the plaintiff came to court seeking a further execution order in circumstances where the defendant had made no payment in respect of the loan for more than ten years, he had multiple tenants in the two properties and was in receipt of the rent in respect of the units. Costello J noted that there was no information before the court as to the value of the rent roll or how long the tenants had been in situ but that there was no dispute that none of the rent was being remitted to the plaintiff in part discharge of the considerable sums outstanding on the loan. Costello J noted that the defendant had benefitted from a delay of upwards of ten years when he had continued to enjoy the use of the properties and to receive the rents from the properties; on the other hand, the secured creditor had received neither repayment on foot of the loans nor had the benefit of any income generated by the properties. In those circumstances Costello J exercised her discretion in favour of the plaintiff.

Costello J held that she would grant the plaintiff leave to issue an execution order pursuant to the order in these proceedings dated 23rd June, 2008.

Application granted.

JUDGMENT of Ms. Justice Costello delivered on the 29th day of June, 2018

1 In this application the plaintiff seeks an order pursuant to O. 42 r. 24 of the Rules of the Superior Courts granting leave to issue an execution order pursuant to an order dated 23rd June, 2008 and an order amending the title of the plaintiff from IIB Home Loans Ltd to KBC Bank Ireland Plc.

Background

2 On the 29th November, 2006 IIB Home Loans Ltd sought an order for possession of the lands and premises known as 31 Richmond Avenue, Fairview, Dublin 3 and 21 Little Mary Street in the city of Dublin pursuant to O. 54 r. 3 of the Rules of the Superior Courts pursuant to mortgage of indenture dated 12th June, 2003 made between the defendant of the one part and IIB Home Loans Ltd of the other part. The mortgage was registered in the registry of deeds on the 1st August, 2006.

3 On the 23rd June, 2008 Dunne J. in the High Court granted the plaintiff an order for possession of the two premises. The defendant appealed the order on the 16th July, 2008 and he lodged a certificate of readiness with the Supreme Court office in February, 2010. Ultimately the appeal was heard on the 29th April, 2014 and judgment was delivered on the 12th November, 2014 dismissing the appeal and affirming the order of the High Court dated 23rd June, 2008.

4 On the 30th September, 2008 by way of special resolution IIB Home Loans Ltd converted to an unlimited company, IIB Home Loans. The company reregistered as an unlimited company on the 16th October, 2008. By a special resolution dated the 2nd October, 2008 IIB Home Loans changed its name to KBC Mortgage Bank and a certificate of incorporation on the change of name was issued by the company registration office on the 24th October, 2008.

5 In 2009 KBC Mortgage Bank and KBC Bank Ireland Plc agreed to enter into a scheme of transfer. Both KBC Mortgage Bank and KBC Bank Ireland Plc are the holders of a licence in relation to the carrying on of banking business in Ireland granted under s. 9 of the Central Bank Act, 1971. As such s. 33 of the Central Bank Act, 1971 applied to the scheme of transfer. Section 33 provides:

'33. — (1) Whenever the holder of a licence (in this Part referred to as the transferor) agrees to transfer, in whole or in part, to another holder of a licence (in this Part referred to as the transferee) the business to which the licence relates—

(a) the transferor and transferee may, not less than four months before the date on which the transfer is intended to take effect (in this Part referred to as the transfer date), submit to the Minister for his approval a scheme for the transfer,

(b) the transferor and transferee shall, not less than one month before the transfer date, publish notice of the transfer in at least one daily newspaper published in the State,

(c) the Minister, after consultation with the Bank, may, not less than two months before the transfer date, either approve of or decline to approve of the scheme by order,

(d) if the Minister approves of the scheme under this section, the provisions of sections 34 to 39 and 42 of this Act shall, if, and to the extent only that, the scheme so provides, have effect in relation to the transfer,

(e) the Minister may, at the request of the transferor and transferee, include in an order approving of the scheme under paragraph (c) of this subsection such incidental, consequential and supplemental provisions as he thinks appropriate for facilitating and implementing the transfer and securing that it shall be fully and effectively carried out, including provisions for substituting the name of the transferee for the transferor or otherwise adapting references to the transferor in any statute or instrument made under statute.

(2) An order under subsection (1) of this section or under this subsection may, after consultation with the Bank and with the consent of the transferor and the transferee to whom it relates, be amended by the Minister by order.'

6 If the scheme of transfer is approved by the Minister, then any account (s. 34) and any security (s. 35) held by the transferor in connection with the business agreed to be transferred as security shall be deemed to have been transferred. Section 41 of the Act provides:

'Where, immediately before the transfer date, any legal proceedings are pending to which the transferor is a party and the proceedings have reference to the business agreed to be transferred, the name of the transferee shall on the transfer date be substituted for that of the transferor and the proceedings shall not abate by reason of such substitution.'

7 The Minister for Finance approved the scheme of transfer pursuant to s. 33 on the 26th February, 2009 pursuant to S.I. 125 of the 2009:

' Central Bank Act 1971 (approval of scheme of KBC Mortgage Bank and KBC Bank Ireland Plc.) Order 2009 whereas:

'(a) KBC Mortgage Bank (in the following Order referred to as the 'Transferor') is a private unlimited company with a share capital incorporated in Ireland under the Companies Acts 1963 to 2006 (no. 129761) on 4 March 1988 under the name Ayrsome Limited. On 31 January 1989, it changed its name to Irish Life Homeloans Limited. On 6 December 1999, it changed its name to IIB Homeloans Limited. On 24 October 2008, it changed its name to KBC Mortgage Bank. The Transferor carries on a banking business in Ireland from its registered office at Sandwith Street, Dublin 2 and is the holder of a licence in relation thereto granted on 24 October 2008 under Section 9 of the Central Bank Act 1971.

(b) KBC Bank Ireland plc. (in the following Order referred to as the 'Transferee') is a public limited company incorporated in Ireland under the Companies Acts 1963 to 2006 (no. 40537) on 14 February 1973 under the name Irish Inter-Continental Holdings Limited. On 25 April 1973, it changed its name to Irish Intercontinental Bank Limited. On 10 January 2000, it changed its name to IIB Bank Limited. On 29 March 2006, it re-registered as a public limited company under the name IIB Bank plc. On 24 October 2008, it changed its name to KBC Bank Ireland plc. The Transferee carries on a banking business in Ireland from its registered office at Sandwith Street, Dublin 2 and is the holder of a licence in relation thereto granted on 17 May 1973 under Section 9 of the Central Bank Act 1971.

AND WHEREAS on 26 February 2009 the Transferor and the Transferee submitted to the Minister for Finance for his approval the Scheme for transfer (in the following Order as referred to as the 'Scheme') made by the Transferor and the Transferee on 26 February 2009.

NOW I, BRIAN LENIHAN, Minister for Finance after consultation with the Central Bank and Financial Services Authority of Ireland and, in respect of Articles 4 to 10 of this Order, at the request of the Transferor and Transferee, hereby, in exercise of the powers conferred on me by section 33 of the Central Bank Act 1971 (No. 24 of 1971), order as follows:

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