Irish Life & Permanent Plc v O'Mahony

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMr. Justice Michael Peart
Judgment Date08 May 2015
Neutral Citation[2015] IECA 98
Docket NumberCourt of Appeal Record No. 2014 583 Supreme Court Record No. 408/2012 (Article 64 Transfer)

[2015] IECA 98

THE COURT OF APPEAL

Peart J.

Irvine J.

Mahon J.

Court of Appeal Record No. 2014 583

Supreme Court Record No. 408/2012

(Article 64 Transfer)

Between
Irish Life & Permanent Plc Trading as Permanent TSB
Plaintiff/Respondent
and
John O'Mahony
Defendant/Respondent

Banking and finance – Liberty to enter final judgment – Adjournment – Appellant seeking adjournment of respondent”s application for liberty to enter final judgment to a full plenary hearing – Whether a ground not argued in the Court below can be argued as part of the appeal

Facts: In response to a 2011 Notice of Motion from the plaintiff/respondent, Irish Life & Permanent Plc (the Bank), seeking liberty to enter final judgment against him for the amount due on foot of certain borrowings, the defendant/appellant, Mr O”Mahony contended that the Bank was not entitled to the judgment that it was seeking since it has failed to properly prove its debt and that, in so far as the Bank had purported to prove the sums due by means of copy documentation, it had failed to comply with the “best evidence rule” since the originals of such documentation were available to the Bank and had not been produced to the High Court. Mr O”Mahony set forth a number of grounds which he submitted disclose a bona fide defence to the Bank”s claim such that the application for liberty to enter final judgment should be adjourned to a full plenary hearing. The High Court concluded that it was clear that no bona fide defence was disclosed in the replying affidavits and that the Bank was therefore entitled to judgment in the amount claimed to be due, namely €927,463.08. On appeal to the Court of Appeal, Mr O”Mahony introduced new grounds of appeal. While he averred in his replying affidavits in a general way that the Bank had failed to properly prove its debt, and that it had failed to provide him with certain documentation which he had sought, and had not produced to the Court the originals of certain documents which he felt should be produced, he had not stated, as did on appeal, that the affidavits sworn by the Bank in relation to the securitisation issue are hearsay and not therefore in compliance with Order 40, rule 4 RSC, or that the affidavit of debt relied upon by the Bank did not comply with the requirements of the Bankers Books Evidence Acts 1879-1989.

Held by Peart J that none of the grounds offered by way of bona fide defence to the Bank”s claim in the High Court met the threshold of arguability required to be overcome by a defendant who seeks to have a claim against him adjourned to a plenary hearing and that the High Court judge was correct in giving judgment to the Bank as sought. Since the appellant had at all times been self-represented in the proceedings, the Court of Appeal allowed him some leeway, particularly where the Bank through its Counsel was in a position to deal with the new grounds in the course of the appeal. However, Peart J held that the rules were clear that a ground not argued in the Court below cannot be argued as part of the appeal except in certain very limited circumstances which in this case did not exist. The Court was satisfied that the affidavit of debt sworn in support of the Bank”s claim was sufficient for the purpose of proving the debt on the motion seeking summary judgment.

Peart J held that the order of the High Court was correct, and that the appeal should be dismissed.

Appeal dismissed.

Judgment of Mr. Justice Michael Peart delivered on the 8th day of May 2015
1

By Order of the High Court (Ryan J. as he then was) the plaintiff/respondent (‘the Bank’) obtained summary judgment against the defendant/appellant (‘Mr. O'Mahony’) for the sum of €927,463.08 together with an order for costs, those to be taxed in default of agreement.

2

Mr. O'Mahony, having been duly served with the Bank's Summary Summons, entered a personal appearance to the proceedings on the 11th January 2011, and has represented himself before the High Court, and again on this Appeal.

3

In response to the Bank's Notice of Motion dated 6th May 2011 seeking liberty to enter final judgment against him for the amount due on foot of certain borrowings, Mr. O'Mahony filed a number of replying affidavits in which he first of all contended that the Bank was not entitled to the judgment that it was seeking since it has failed to properly prove its debt; and secondly, in so far as the Bank had purported to prove the sums due by means of the copy documentation exhibited by Remco Appel in his affidavit grounding the Notice of Motion dated 6th May 2011, it had failed to comply with the “best evidence rule” since the originals of such documentation were available to the Bank and had not been produced to the Court. Mr. O'Mahony had sought certain documentation from the Bank by various letters, copies of which he exhibited in his affidavits and these had not been provided by the Bank.

4

Apart from objections that the Bank had not properly proven the amount claimed to be due, Mr. O'Mahony set forth in his replying affidavits a number of grounds which he submits disclose a bona fide defence to the Bank's claim such that the application for liberty to enter final judgment should be adjourned to a full plenary hearing.

5

Having had the contents of the affidavits opened to him, and having heard any submissions that were made both by the Bank and by Mr. O'Mahony, Ryan J. concluded that it was clear that no bona fide defence was disclosed in the replying affidavits and that the Bank was therefore entitled to judgment in the amount claimed to be due.

6

The grounds which Mr. O'Mahony had contended showed a bona fide defence to the Bank's claim can be summarised as follows:

(a) There ought to be a set-off between the amount claimed to be due by the Bank, and the amount or value of the security held by the Bank, that this claim for a set-off amounted to a defence to the claim, and that until such time as the value of the security was ascertained, the Bank was estopped from continuing with the proceedings.

(b) Since the redemption date specified in the mortgage forming the Bank's security for the debt has not passed, the Bank was estopped from bringing, or continuing, proceedings to recover the debt, and that in so far as the Bank claimed that there was a breach of the terms and conditions of the facility letters under which the monies were advanced, the terms of the mortgage deed prevail.

(c) The mortgage deed being the Bank's security was not validly executed, since it pre-dates the commencement of the Land and Conveyancing Law Reform Act, 2009, and in particular section 64 thereof which abolished the requirement that a deed by an individual had to be sealed, and that the mortgage in question is not sealed.

(d) The mortgage created by the Bank is not a legal mortgage, but rather an equitable mortgage entitling the Bank, therefore, to equitable remedies only, and that the Bank cannot seek legal remedies on foot of same.

(e) The bank has entered into a securitisation agreement with a third party special purpose vehicle in respect of, inter alia, Mr. O'Mahony's borrowings, and therefore no longer has any entitlement to the recovery of such loans.

(f) The Bank may not obtain judgment for the amount owed by Mr. O'Mahony because it cannot be exposed to an event of default by him since it has granted a Charge to the Central Bank, and further that by granting such Charge the Bank has committed a regulatory breach by not having obtained his prior consent.

(g) Given the pre-condition to any drawdown of a facility that the Bank must value the security being offered, and the fact that in this case the Bank satisfied itself as to the value thereof, the par value of the security must always be accepted by the Bank in full and final settlement of the debt owed to the Bank.

(h) The Bank is guilty of reckless lending, disentitling it to recover judgment for the amount if any such loans.

7

The trial judge, having heard and considered...

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