Luke Charleton and Andrew Dolliver v Paul Coates

JurisdictionIreland
JudgeMs. Justice Costello
Judgment Date02 March 2021
Neutral Citation[2021] IECA 58
Date02 March 2021
Docket NumberCourt of Appeal Record Number 2019/444
CourtCourt of Appeal (Ireland)
Between
Luke Charleton and Andrew Dolliver
Plaintiffs/Respondents
and
Paul Coates
Defendant/Appellant

[2021] IECA 58

Costello J.

Donnelly J.

Faherty J.

Court of Appeal Record Number 2019/444

THE COURT OF APPEAL

Interlocutory injunctions – Jurisdiction – Land and Conveyancing Law Reform Act 2013 s. 3 – Appellant appealing against the judgment of the High Court granting the respondents interlocutory injunctions – Whether the Circuit Court had exclusive jurisdiction to grant the reliefs sought having regard to the provisions of s. 3 of the Land and Conveyancing Law Reform Act 2013

Facts: The defendant/appellant, Mr Coates, appealed to the Court of Appeal against the judgment of the High Court (Reynolds J) dated 9 October 2019 ([2019] IEHC 712) where the High Court granted the plaintiffs/respondents, Mr Charleton and Mr Dolliver (the Receivers), interlocutory injunctions directing Mr Coates, his servants or agents or any person having notice of the making of the order to vacate the premises known as 13 Coldwater Lakes, Saggart, County Dublin (the property), to remove his possessions from the property and other ancillary orders. The central issue for resolution was whether the Circuit Court had exclusive jurisdiction to grant the reliefs sought having regard to the provisions of s. 3 of the Land and Conveyancing Law Reform Act 2013 and, therefore, whether the High Court erred in granting the Receivers the injunctions they sought. While Mr Coates originally raised other grounds of defence, these were not pursued on appeal and it was conceded that the sole basis upon which Mr Coates claimed to have a defence was the jurisdictional ground based on s. 3.

Held by Costello J that Mr Coates had not raised an arguable defence to the proceedings; the Receivers did not seek an order for possession within the meaning of s. 3, and on this basis Mr Coates’ defence of the proceedings was bound to fail. She held that the corollary was that the Receivers had a strong arguable case for the reliefs they sought in the High Court. She held that the Receivers could not perform their functions if the reliefs were not granted. She noted that Mr Coates had made minimal repayments on a debt in excess of €1,000,000 and the value of the security was considerably less than the debt outstanding. She noted that he had considerable debts due to other creditors and a very modest income. She found that there was no reality to the repayment of the loan, or even the partial repayment, other than through a realisation of the security. She held that the reliefs sought were a necessary precursor to such realisation, albeit that the Receivers had no power of sale. She held that these facts favoured the granting of an injunction. She found that Mr Coates had not really assisted the court in relation to arguments why the injunctions should be refused, notwithstanding the fact that the Receivers were entitled to possession against the mortgagor in possession of the secured property. Having applied the test of the least risk of injustice, based on the evidence before the court, notwithstanding that the effect of the order was to require Mr Coates to vacate his residence, she saw no reason to refuse the reliefs sought by the Receivers. For those reasons, she held that she would refuse the appeal and affirm the order of the High Court.

Costello J held that her preliminary view was that costs should follow the event and that the Receivers were entitled to the costs of the appeal, to be adjudicated in default of agreement.

Appeal refused with costs to the respondents.

UNAPPROVED

JUDGMENT of Ms. Justice Costello delivered on the 02 day of March 2021

1

. This is an appeal against the judgment of the High Court (Reynolds J.) dated 9 October 2019 ( [2019] IEHC 712) where the High Court granted the plaintiffs (“the Receivers”) interlocutory injunctions directing the defendant (“Mr. Coates”), his servants or agents or any person having notice of the making of the order to vacate the premises known as 13 Coldwater Lakes, Saggart, County Dublin (“the property”), to remove his possessions from the property and other ancillary orders. The central issue for resolution is whether the Circuit Court has exclusive jurisdiction to grant the reliefs sought having regard to the provisions of s. 3 of the Land and Conveyancing Law Reform Act 2013 and, therefore, whether the High Court erred in granting the Receivers the injunctions they sought. While Mr. Coates originally raised other grounds of defence, as discussed below, these were not pursued on appeal and it was conceded that the sole basis upon which Mr. Coates claimed to have a defence was the jurisdictional ground based on s. 3.

Background
2

. In 2005, Mr. Coates resided at 30 The Green, Cypress Downs, Templeogue, Dublin 16 (“his original family home”). He was also the owner of a residential property at 13 Coldwater Lakes, Saggart, County Dublin (the property). On 19 December 2005, he accepted a Letter of Offer from Ulster Bank Ireland Limited (“the bank”), dated 15 December 2005, offering him a loan facility of €1,000,000 to assist with a personal investment in a capital guarantee bond (“the loan facility”). The term was seven years from the date of first drawdown. The security for the loan was already held and consisted of a mortgage of the property dated 21 October 2005.

3

. Mr. Coates failed to repay the loan after the term expired in 2012 and by letter of demand, dated 15 March 2013, the bank demanded repayment of the entire loan then outstanding. In respect of the loan of 15 December 2005, the sum outstanding was €1,011,957.79; the sum outstanding in respect of a prior facility, dated 4 October 2005, was €94,871.67. No repayments had been made in relation to the loan facility. Thereafter, the statutory powers of the bank as mortgagee pursuant to the Conveyancing Acts 1881–1911 became exercisable by the mortgagee.

4

. By a Global Deed of Transfer dated 25 February 2016, the interest of the bank and certain associated companies in the loan facility, and associated security, was transferred to Promontoria (Aran) Limited. The property is unregistered land. By a Deed of Conveyance and Assignment dated 12 February 2015, the bank conveyed and assigned its interests in the mortgage to Promontoria (Aran) Limited. Following the transfer of the bank's facilities to Promontoria (Aran) Limited, a letter was written on 1 May 2015 by Link Asset Services Limited on behalf of Promontoria (Aran) Limited advising Mr. Coates of the assignment of the loan facility and the related security to Promontoria (Aran) Limited.

5

. By an Instrument of Appointment of a Receiver, made on 15 December 2016, Promontoria (Aran) Limited appointed Andrew Dolliver of Ernst & Young, 16 Bedford Street, Belfast, Northern Ireland and Luke Charleton of Ernst & Young, Chartered Accountants of Harcourt Centre, Harcourt Street, Dublin 2 (“the Receivers”) to be receivers of and over the property pursuant to the Deed of Mortgage, dated 21 October 2005, made between the bank and Mr. Coates.

6

. Mr. Charleton wrote on 15 December 2016 to the tenant of the property requiring that any rent be paid to him directly in his capacity as joint receiver. Mr. Coates replied on 19 December 2016 complaining of intermeddling, harassment and undue influence on the part of the Receivers. He said that the property was his personal home and he asserted a right to peaceful enjoyment of it pursuant to the European Convention on Human Rights.

7

. Mr. Charleton said that from enquiries which he had made it appeared that the property had been rented. He said that this is consistent with Mr. Coates' address being in Templeogue but that the position had become less clear. By letter dated 12 October 2017, Mr. Charleton wrote to Mr. Coates requesting that he substantiate his claim that the property was his family home. In response, Mr. Coates sent a letter notifying “To whom it concerns” that he had appointed Mr. Seamus Sutcliffe of Lansdowne Francs to be his accountant and to act on his behalf in relation to “my home at 13, Coldwater Lakes, Saggart.”

8

. On 10 February 2017, solicitors for the Receivers wrote to Mr. Coates:-

“As we have previously advised please note that in accordance with our client's entitlements, that he proposes to enter and manage the property for the purposes of exercising his powers as conferred on him under the Charge and at Law.

Our client requires either that you peacefully deliver up vacant possession of this property or furnish a copy of any letting agreement that is in place with a tenant should this property be occupied. Our client also requires all rents being received to be furnished directly to them.”

9

. They wrote again on 25 April 2018, stating that the Receivers had attempted to enter possession of the property for the purposes of exercising their powers and stating that “pursuant to our clients' appointment that they are entitled to enter, manage and secure possession of the property.”

10

. The solicitors called upon Mr. Coates to deliver up vacant possession of the property and indicated that they had instructions to initiate appropriate proceedings against him for delivery up of possession of the property unless vacant possession was delivered within the fourteen days specified.

11

. On 14 May 2018, the Receivers' solicitors received a letter from Lansdowne Francs saying that they acted for Mr. Coates. The letter advised that the property is Mr. Coates' private home and stated as follows:-

“We would advise that your client has no entitlements whatsoever to enter our client's private home. Our client is very unwell, and we would urge you to immediately desist from any attempt to enter our client's family home unless you have an Order from the Court.

Our firm has written to the purported Receiver by Registered Post several months ago and our...

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1 cases
  • Luke Charleton v John Hassett
    • Ireland
    • High Court
    • 30 November 2021
    ...that without vacant possession the security will be very difficult if not impossible to realise. But by contrast with Charleton v. Coates [2021] IECA 58, on which the plaintiff relies – there is no evidence of the value of the property with vacant possession. As I have said, it is common ca......

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