Larkin v Gaynor

• Jurisdiction: Ireland
• Judge: Ms Justice Faherty
• Judgment Date: 13 October 2022
• Neutral Citation: [2022] IECA 224
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal Number: 2021/281

Between/

Michael Ian Larkin

Plaintiff/Respondent

and

John Gaynor

Defendant/Appellant

[2022] IECA 224

Barniville J.

Donnelly J.

Faherty J.

Appeal Number: 2021/281

THE COURT OF APPEAL

Bankruptcy – Adjudication – Injunctive relief – Defendant appealing the order which, pending the trial of the action, restrained the defendant from trespassing on lands – Whether there was unlawful interference by senior counsel for the plaintiff with the court process

Facts: The defendant, Mr Gaynor, was adjudicated a bankrupt by order of the High Court (Costello J) on 7 December 2015 (the Adjudication Order) on foot of a petition by his former solicitors, Messrs Sheridan and Quinn (the petitioning creditor). An order of the High Court (Allen J) of 15 October 2021, pending the trial of the action, restrained the defendant, his servants or agents or anyone acting in concert with him or having notice of the order from: (1) trespassing on lands comprised in Land Registry Folios 10753F, 2538F and 7609F, County Westmeath; (2) interfering with or obstructing the plaintiff, Mr Larkin, from exercising his lawful power to take possession of the lands; (3) preventing the plaintiff from exercising his lawful powers to sell the lands and deliver vacant possession to a purchaser; (4) contacting or interfering with purchasers or prospective purchasers of the lands; and (5) interfering with or obstructing the plaintiff from exercising his powers or functions as official assignee in the estate of Mr Gaynor. Mr Gaynor appealed to the Court of Appeal against the Adjudication Order of 7 December 2015 and the order of Allen J of 15 October 2021. The principal grounds advanced were as follows: (i) unlawful interference by senior counsel for the official assignee with the court process; (ii) the Adjudication Order of 7 December 2015 should not have been made as all due legal fees had been discharged; and (iii) an order of the Court of Appeal of 9 November 2020 was of no effect as there was no actual hearing of Mr Gaynor’s appeal. In his respondent notice, the official assignee asserted as follows: (i) the notice of appeal disclosed no grounds of substance against the order of Allen J; (ii) Mr Gaynor’s adjudication in bankruptcy had been the subject of an application before the High Court to show cause, appeals to the Court of Appeal and leave applications to the Supreme Court all determined adverse to Mr Gaynor – in consequence, he had exhausted his right to appeal the Adjudication Order; (iii) the lands the subject matter of the order of Allen J vested in the Official Assignee; (iv) contrary to Mr Gaynor’s assertions, Allen J did not make a finding that the debt the subject of the Adjudication Order had been satisfied prior to the order of adjudication; and (v) Mr Gaynor’s arbitrary allegations against the solicitors and counsel for the Official Assignee were unfounded.

Held by Faherty J that the entire thrust of Mr Gaynor’s submissions was that he should not have been adjudicated a bankrupt on 7 December 2015. She held that this was not an argument Mr Gaynor was entitled to make as he had exhausted all avenues in that regard by his application to show cause, his appeals to the Court of Appeal and his leave applications to the Supreme Court; the result of those failed appeals and applications for leave was that there was an extant Adjudication Order which neither the High Court nor the Court of Appeal could go behind. She was satisfied that in making the order he did, the Judge applied the correct principle, as stated in Keating & Co. Ltd v Jervis Street Shopping Centre Ltd [1997] I IR 512, namely that an owner of lands whose title is not in issue is entitled to injunctive relief subject to the defendant establishing that he had a right to do what would otherwise be a trespass. She held that nothing Mr Gaynor had said persuaded her that the Judge erred when he found that Mr Gaynor had not pointed to evidence that established that he had a right to interfere with the lands in question.

Faherty J dismissed the appeal. She held that the official assignee should be awarded his costs.

Appeal dismissed.

UNAPPROVED

Judgment of Ms Justice Faherty dated the 13 ^th day of October 2022

1 . The defendant (hereinafter “Mr. Gaynor” or “the defendant”) appeals the Order of the High Court (Allen J.) of 15 October 2021 which, pending the trial of the action, restrains the defendant, his servants or agents or anyone acting in concert with him or having notice of the Order from:

• 1. trespassing on lands comprised in Land Registry Folios 10753F, 2538F and 7609F, County Westmeath;

• 2. interfering with or obstructing the plaintiff from exercising his lawful power to take possession of the lands;

• 3. preventing the plaintiff from exercising his lawful powers to sell the lands and deliver vacant possession to a purchaser;

• 4. contacting or interfering with purchasers or prospective purchasers of the lands and,

• 5. interfering with or obstructing the plaintiff from exercising his powers or functions as Official Assignee in the Estate of John Gaynor (the defendant).

2 . The High Court Order was made following delivery by Allen J. of his ex tempore judgment on 15 October 2021 ( [2021] IEHC 676).

3 . The within proceedings were commenced by the plaintiff (hereinafter “the Official Assignee”) on 21 September 2021 by way of plenary summons. The notice of motion for injunctive relief issued on 22 September 2021 grounded on the Official Assignee's affidavit sworn 21 September 2021. The interlocutory motion came on for hearing on 14 October 2021. It appears that Mr. Gaynor, who was (and remains) self-represented, was permitted to hand in a replying affidavit (sworn 12 October 2021) on that date and he made submissions to the court.

4 . As deposed to by the Official Assignee at para. 1 of his grounding affidavit, Mr. Gaynor was adjudicated a bankrupt by Order of the High Court (Costello J.) on 7 December 2015 (“the Adjudication Order”) on foot of a petition by his former solicitors, Messrs. Noel Sheridan and Peter Quinn (hereinafter “Sheridan Quinn” or “the petitioning creditor”).

5 . The adjudication of Mr. Gaynor as a bankrupt was in respect of the sum of €37, 193.60 being the amount found on taxation to be due and owing pursuant to the Order of the High Court of 11 March 2013, by which it had been ordered that Mr. Gaynor was to give up clear and vacant possession of lands over which a well-charging Order had been made by the High Court (Finlay Geoghegan J.) on 12 July 2004 which had been in turn made on foot of a judgment mortgage obtained by Sheridan Quinn. As noted by Costello J. in the course of her ex tempore judgment on 7 December 2015, on 11 March 2013 Finlay Geoghegan J. had directed that provided that possession of the lands in question was delivered up by Mr. Gaynor or payment of the sums due was made by him on or before 10 May 2013, there would be no order for costs. If, however, there was default in respect of the delivering up of possession or the alternative requirement on Mr. Gaynor to pay the sums due, Mr. Gaynor was liable for costs. As found by Costello J. on 7 December 2015, as neither possession was delivered nor payments of the sums due made, costs became payable by Mr. Gaynor to Sheridan Quinn pursuant to the 11 March 2013 Order. Costello J. also noted that neither the judgment and Order of Finlay Geoghegan J. nor the certificate of taxation that duly issued on 22 April 2015 were appealed. For the reasons she set out in her judgment, Costello J. was ultimately satisfied that the requirements of the relevant provisions of the Bankruptcy Act 1988 had been met, and Mr. Gaynor was duly adjudicated a bankrupt on 7 December 2015.

6 . Mr. Gaynor brought an application to show cause against the adjudication. That application was dismissed by Order of the High Court (O'Connor J.) on 20 April 2016.

7 . Mr. Gaynor appealed the Adjudication Order to the Court of Appeal. The appeal was out of time. It was dismissed on 10 October 2016.

8 . On 25 November 2016, Mr. Gaynor brought an application for leave to appeal to the Supreme Court which was refused on 6 December 2017 ( [2017] IESC DET 124). In its Determination the Supreme Court stated, inter alia, as follows:

“The application for leave to appeal arises from an appeal to the Court of Appeal from a decision of the High Court in bankruptcy proceedings brought against the applicant by the respondents. In essence, the applicant has complained about the manner in which the bankruptcy proceedings were conducted in the High Court. This complaint related not only to the hearing before the High Court itself but also to the fact that he had been prevented from bringing an application to the High Court pursuant to the provisions of s. 8(5) of the Bankruptcy Act 1988.

It is important to bear in mind a number of points. The adjudication of the applicant as a bankrupt was in respect of the sum of €37,193.60 being the amount found on taxation to be due on foot of the order of the High Court of the 11 ^th March, 2013, by which it had been ordered that the applicant was to give up clear and vacant possession of the lands over which a well charging order had been made on the 12 ^th July, 2004 in turn made on foot of the judgment mortgage registered by the respondents. Neither the order for costs nor the certificate of taxation were the subject of an appeal or challenge. The applicant has referred to the order of the 8 ^th December, 2003 as a fraud and has referred to forgery of the court order. If the original order was a “fraud” or a “forgery” as alleged by the applicant, it is difficult to understand why that order was not appealed or challenged within the time limited for seeking to appeal the order or to have the order set aside on the basis that it was a “fraud” or a “forgery”. A judge in bankruptcy or indeed in other proceedings will not, in...