Irish Life and Permanent Plc t/a Permanent TSB v Garreth (aka Gary) Peters and Another
| Jurisdiction | Ireland |
| Judge | Mr. Justice Cregan |
| Judgment Date | 16 September 2014 |
| Neutral Citation | [2014] IEHC 585 |
| Court | High Court |
| Date | 16 September 2014 |
[2014] IEHC 585
THE HIGH COURT
BETWEEN
AND
VOLUNTARY PURCHASING GROUPS INC v INSURCO INTERNATIONAL LTD & AGRICHEM LTD 1995 2 ILRM 145 1995/5/1695
ADAMS v DPP & ORS 2001 2 ILRM 401 2000/1/52
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)
ULSTER INVESTMENT BANK LTD v ROCKROHAN ESTATE LTD UNREP IRVINE 14.1.2009 2009/56/14119 2009 IEHC 4
HIBERNIAN TRANSPORT COS LTD, IN RE 1972 IR 190
BUZREEL LTD, IN RE UNREP HOGAN 1.5.2014 2014 IEHC 225
VAN HOOL MCARDLE LTD, IN RE 1980 IR 237 1982 ILRM 340
Application to set aside – Loan – Repayment – Breach of Agreement – Properties – Slip Rule Application – Private Treaty – Contract – Amendment – Practice and Procedures
Facts: The case at hand concerned an application by the second named defendant to set aside an order of the High Court (Finlay Geoghegan J.) made on 2nd September, 2013. On 15th March, 2004 the plaintiff advanced a loan to the first defendant in the sum of approximately €500,000. The sum advanced was a residential mortgage loan and was secured over a number of properties. In October 2004, the first named defendant then sold the properties to another party. These properties were allegedly conveyed to that other person in breach of the mortgage agreement between the plaintiff and the first named defendant. As a result, the proceeds of sale were paid to the first named defendant directly, instead of being paid to the plaintiff to reduce the outstanding loan. On 4th December, 2006 the plaintiff wrote to the first named defendant in respect of the sale of the said properties and also in respect of arrears on the loan account and sought repayment of the loan. The plaintiff called in the loan which amounted to the sum of approximately €526,000 (including interest) from the first defendant. The first defendant failed, neglected and/or refused to pay the outstanding loan. In June 2008, the plaintiff demanded possession of the property from the first named defendant but the first named defendant failed, refused and/or neglected to deliver up possession. On 3rd July, 2008 the plaintiff issued a special summons against the first and second defendants. In light of a number of Court Orders, which were not appealed by the second defendant, allegedly not prospered served and a failure to appear at hearings including an application before the Examiner"s Office, the High Court on 2nd September, 2013: (a) directed that the plaintiff should be at liberty to sell the said property at Atlantis by private treaty; (b) approved the sale of the said property to Michael O"Hehir for the sum of €265,000; (c) ordered that the purchase money be lodged in Court in accordance with the lodgement schedule to be settled by the Examiner; (d) fixed a closing date for the sale of 1st October, 2013; and (e) deemed service of the said motion on the defendants to be good and sufficient service of the said motion on them given what was deposed to in the affidavits of service. Thus the Court made an order permitting the plaintiff to sell the property by private treaty. The Second defendant responded by seeking a motion to set aside the High Court order of 2nd September, 2013.
Held by Justice Cregan having considered all the affidavits, the legal submissions and the submissions of counsel that the second named defendant"s application to strike out the High Court order of 2nd September 2013 should not succeed for the following reasons: (1) the second defendant was fully heard at the application; (2) as there was no appeal pending, under the circumstances the High Court orders must be regarded as final and conclusive; (3) The only issues to be considered at the Examiner"s Office hearing and the High Court hearing of the Examiner"s list were the appointment of an auctioneer, the appointment of a valuer and an order for sale by auction; (4) Acknowledging that the second defendant was not aware of the first application and was not in a position to make representations on those issues, her main submission was about the proper value of the property and the marketing and publicity for the auction, in order to maximise the value of the property; (5) There was no evidence before the Court that the plaintiff did not use their best endeavours to obtain the best price possible for all concerned for the property; (6) Reasoning that the second defendant"s submissions would have been limited, of necessity, to issues of valuation and to issues surrounding the auction it was reasoned that she had suffered no prejudice; (7) The matter was returned to the Examiner"s list for directions on one net issue (i.e. whether to permit the sale of the property by private treaty instead of by auction at a price of €265,000 to a specific person); (8) the second defendant was served but did not collect her registered post in a timely fashion; (9) it was possible that the High Court might have adjourned the matter for a further two weeks to permit another attempt at service; (10) the only issue before the Court that day was to consider the issue as to whether the property should be sold by private treaty rather than by auction and to approve the sale by private treaty to a specific individual; (11) the clear evidence of the auctioneer was that the auction was properly conducted and that no bids in excess of €220,000 were received; (12) the second defendant was not able to point to any prejudice at all that she may have suffered; (13) the second defendant by virtue of the motion had her case heard and as such could point to no prejudice at all which had occurred to her by virtue of the fact that she was not heard in the limited motions in the Examiner"s List which have as their sole purpose the implementation of a High Court order which the second defendant did not appeal; (14) the second defendant would only be entitled to those proceeds of sale – not to an interest in the property per se; (15) The second bidder appealed the decision to the Supreme Court; (16) In the present case there was absolutely no evidence of any higher offer for the property. The only evidence was a disputed valuation from the second defendant"s valuer which stated that the property might be worth up to €380,000. In the opinion of Justice Cregan, that fell considerably short of what might be required in the present case to overturn the order of 2nd September, 2013. Indeed even if the second defendant could supply evidence of a higher offer, it was reasoned the court having approved the sale would have to keep faith with the purchaser. Consequently, for the above reasons, the application to set aside the order of the High Court was refused.
JUDGMENT of Mr. Justice Cregan delivered the 16th day of September, 2014
1. This is an application by the second named defendant to set aside an order of the High Court (Finlay Geoghegan J.) made on 2 nd September, 2013.
2. The following chronology of events sets out the context in which the current application is made.
3. On 15 th March, 2004 the plaintiff advanced a loan to the first defendant in the sum of approximately €500,000. The sum advanced was a residential mortgage loan and was secured over the following three properties
(a) The property known as "Atlantis" at Coast Road, Rush, County Dublin
(b) A property at No. 1 Coolagh Court, Coolagh Street, Drogheda
(c) A property at No. 2 Coolagh Court, Coolagh Street, Drogheda.
4. Subsequently, on or about October, 2004, the first named defendant then sold the properties at 1 and 2 Coolagh Court to another party. These properties were allegedly conveyed to that other person in breach of the mortgage agreement between the plaintiff and the first named defendant. As a result, the proceeds of sale were paid to the first named defendant directly, instead of being paid to the plaintiff to reduce the outstanding loan.
5. On 4 th December, 2006 the plaintiff wrote to the first named defendant in respect of the sale of the said properties and also in respect of arrears on the loan account and sought repayment of the loan.
6. On 20 th March, 2007 the first named defendant's solicitors wrote to the plaintiff in respect of the property "Atlantis". This letter stated that the property "Atlantis" was now the subject matter of an order of the High Court in family law proceedings with his estranged spouse, the second named defendant. The letter stated that on 9 th March, 2007 a family law settlement was entered into between the first and second named defendant and was ruled by the High Court on 9 th March, 2007. Given the confidential nature of the family law proceedings the full order and terms of settlement were not set out but as part of the settlement, the first defendant agreed to transfer to his wife, the second defendant, the entire of his legal and beneficial interest in Atlantis free from all mortgages and encumbrances. The husband also agreed that he would procure the release of the mortgage upon this property within a period of six months of the family law settlement. (This, he subsequently failed to do).
7. On 6 th June, 2008 the plaintiff wrote to the second defendant at her address at Atlantis, Coast Road, Rush, County Dublin stating that the plaintiff intended to issue proceedings for the purpose of realising the bank's security over the property of her husband at Atlantis, Coast Road, Rush, County Dublin. The letter also stated that the bank had been put on notice by the first named defendant's solicitors of the High Court order made in relation to the property at Atlantis in the...
To continue reading
Request your trial