KBC Bank Ireland Plc v Smith

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMs. Justice Irvine
Judgment Date23 Mar 2018
Neutral Citation[2018] IECA 90
Docket NumberNeutral Citation Number: [2018] IECA 90

[2018] IECA 90

THE COURT OF APPEAL

Irvine J.

Peart J.

Irvine J.

Hogan J.

Neutral Citation Number: [2018] IECA 90

Record No. 2018/111

BETWEEN/
KBC BANK IRELAND PLC
PLAINTIFF/RESPONDENT
- AND -
GORDON SMITH, LINDA HUSSEY, BEN GILROY

AND

UNKNOWN PERSONS OCCUPYING THE PREMISES AT CHIEFTAINS WAY, 37 HAMLET AVENUE, BALBRIGGAN, CO. DUBLIN
DEFENDANTS/APPELLANTS

Possession of property – Stay on order – Locus standi – Appellant seeking a stay on an order – Whether the appellant had the necessary locus standi to advance the grounds of appeal set out in his notice of appeal

Facts: The High Court (Baker J), on the 15th March 2018, ordered each of the defendants/appellants to deliver up possession to the plaintiff/respondent, KBC Bank PLC (the bank), the premises at No. 37, Hamlet Avenue, Balbriggan (the property). Baker J also made orders restraining the defendants from impeding and/or obstructing the bank from taking possession of the property and thereafter from trespassing thereon. The third defendant, Mr Gilroy, by notice of appeal dated the 21st March 2018, sought to appeal the aforementioned order of the 15th March 2018. He applied to the Court of Appeal for a stay on the order. He first maintained that he was entitled to defend the proceedings and argue his appeal against the order by contending that the Circuit Court order made by the County Registrar on the 29th April 2016 was void and of no effect. Second, Mr Gilroy claimed that he wished to defend the proceedings on a point of law, namely that the bank had no entitlement to the order sought on the interlocutory injunction in circumstances where the sheriff, as a matter of law, had no power to forcibly enter and take possession of a property that was the “dwelling” of the first defendant, Mr Smith. Mr Gilroy claimed that he was entitled to advance all possible defences to the bank’s claim as pleaded and that he could not be restricted to legal arguments solely directed to the bank’s claim against him personally. Likewise he claimed to be entitled to advance all grounds of appeal as would have been open to the other defendants had they chosen to appeal the order of Baker J. Further he argued that the balance of convenience favoured the granting of the stay in that if imposed it will permit the Smith family to remain in the property until the legal issues raised by him on the appeal are disposed of.

Held by Irvine J that, having applied the principles referred to in Redmond v Ireland, [1992] 2 IR 362 and Charles v The Minister for Justice [2016] IESC 48 to the facts of the case, the application must fail. Irvine J was not satisfied that Mr Gilroy had established any arguable ground of appeal.

Irvine J held that she would refuse the stay.

Motion refused.

JUDGMENT of Ms. Justice Irvine delivered on the 23rd day of March 2018
1

This is an application made by the third named defendant in these proceedings, Mr. Ben Gilroy, for a stay on an order of the High Court, Baker J., made on the 15th March 2018.

2

By her order, Baker J. directed each of the defendants named in the title to proceedings to deliver up possession to KBC Bank PLC (‘the bank’) the premises at No. 37, Hamlet Avenue, Balbriggan (hereinafter ‘the property’). She also made orders restraining the defendants and other persons with notice of the making her order from impeding and /or obstructing the bank from taking possession of the property and thereafter from trespassing thereon.

3

By notice of appeal dated the 21st March 2018, Mr Gilroy seeks to appeal the aforementioned order.

4

It is of particular importance to this application that Mr. Gordon Smith, who is (or was) the owner of the property, did not appear at the hearing of the interlocutory injunction to contest the entitlement of the bank to the relief sought on the basis of the claim as advanced. Neither has he sought to appeal the lawfulness of that order. Whilst the court has been advised that Mr Smith has continued to reside in the property since re-taking possession on the 26th February last, it may reasonably be inferred from his failure to engage with the injunction process that he has accepted the bank's entitlement to possession of the property and that he does not wish to raise any defence to the bank's claimed entitlement.

Background
5

The factual background which led to the making of the High Court order is not contested and is set out in some detail in the book of pleadings and affidavits that was before Baker J. when she made her order.

6

It is not disputed that the bank commenced plenary proceedings on the 27th February 2018 wherein it claims, inter alia, an order requiring the named defendants, and any one else with notice of the making of any order, to vacate the property and deliver up possession to the bank.

7

The bank followed up its plenary summons with applications for interim and interlocutory injunctions. Several affidavits were filed in support of those applications. From the grounding affidavit of Mr. Darragh Langan, it appears that Mr. Smith mortgaged the property concerned to KBC Bank to secure the provision of certain loan facilities. It is not disputed that as of the 27th February 2018 the arrears owing by Mr. Smith on foot of that facility amounted to €87,865.69 leaving a total balance of €274,887.70 outstanding.

8

Due to Mr. Smith's failure to meet his repayments the bank obtained an order for possession from the County Registrar of the Circuit Court on the 29th April 2016. That order was not appealed by Mr. Smith and the Court has been furnished with a copy of same.

9

On the 31st May 2017 an execution order issued from the Dublin Circuit Court office directing the sheriff to take possession of the property. Sometime later, on the 26th February 2018, the sheriff attempted to take possession and execute the Circuit Court order. According to the affidavit sworn by Mr. Langan, Mr. Smith, Ms. Hussey, the second named defendant, and her son obstructed his efforts. Possession was nonetheless taken.

10

Later on the same evening Mr. Smith and a large group of his supporters apparently engaged in unseemly conduct in their efforts to retake possession of the property. It is not necessary to describe further the events of the evening of the 26th February last as they are canvassed extensively in the affidavit of Mr. Fergus Gallagher, the Sherriff, and the affidavits of two other security officers caught up in the affray. It is, however, sufficient to state that it is therein asserted that Mr. Gilroy played a role in encouraging those involved to re-take possession. Again, it is not necessary to detail the nature of the bank's evidence against Mr Gilroy. It should, however, be noted that Mr Gilroy denies some of the conduct alleged against him, in particular the claim that he videoed the engagement between the relevant factions and posted the same to Facebook.

11

In its application for interlocutory relief the bank claimed that the conduct of the owner Mr Smith and his supporters, including Mr. Gilroy, on the evening of the 26th February 2018 was such that it was unable to exercise its right to possession of the property as per the Circuit Court order. It claimed that it would only be able to do so with the benefit of the orders sought. It complained also that damages would not be an adequate remedy should the injunction be refused as the trespassers would not be a good mark for damages. The bank also gave the necessary undertaking as to damages.

12

Following a consideration of the evidence and the arguments advanced by the parties the High Court judge granted the interlocutory relief sought by the bank in its notice of motion. It should be said that Mr Smith, for whatever reason, elected not to contest the bank's entitlement to possession of his property. Neither did Ms. Hussey. Relevant also is the fact that Mr. Smith has not appealed the order of Baker J. requiring him to deliver up possession of the property on the basis of the Circuit Court order. Accordingly it is to be inferred from Mr Smith's conduct that he does not wish to...

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