Martin Casey and David Casey v Everyday Finance Dac and David O'Connor
| Jurisdiction | Ireland |
| Judge | Mr. Justice Twomey |
| Judgment Date | 12 March 2021 |
| Neutral Citation | [2021] IEHC 167 |
| Docket Number | [2020 No. 5456 P] |
| Court | High Court |
| Date | 12 March 2021 |
[2021] IEHC 167
[2020 No. 5456 P]
THE HIGH COURT
Interlocutory injunction – Fair question to be tried – Balance of justice – Plaintiffs seeking interlocutory injunction – Whether the plaintiffs had raised a fair question to be tried
Facts: The plaintiffs, Mr M Casey and Mr D Casey, owed approximately €3.5 million to Allied Irish Banks plc (AIB), which debt had been acquired by the first defendant, Everyday Finance DAC (Everyday). The plaintiffs claimed that an interlocutory injunction should be granted against a receiver who was seeking to sell a family farm. They claimed that since the farm was agricultural land, it was not therefore commercial property or investment property, and as such they claimed that the balance of justice favoured the grant of the injunction. AIB obtained a summary judgment against one of the plaintiffs on the 25th February, 2014 in default of appearance in the sum of €3,425,096. Some five and a half years after that judgment was obtained the Supreme Court held in Bank of Ireland Mortgage Bank v O’Malley [2019] IESC 84 that claims for summary judgment must be set out in more detail than was allegedly done for the judgment obtained in this case. For this reason, and in particular because the judgment was obtained without any appearance by the plaintiffs, they claimed that the judgment obtained in February 2014 was invalid.
Held by the High Court (Twomey J) that the Caseys had not raised a fair question to be tried regarding the validity of the judgment granted against Mr M Casey, or the appointment and/or powers of the receiver, such as to justify an interlocutory injunction. Even if they had, it was clear to the Court that the balance of justice did not favour the grant of the injunction since damages were an adequate remedy for the Caseys. In particular, Twomey J held that the fact that the property was agricultural land and an inherited family farm did not mean that the land could not be described as commercial property or investment property, just as an inherited family pub or shop is commercial/investment property. Twomey J held that since the charged land was commercial/investment property, and not a family home, it could not be said that damages were an inadequate remedy for the Caseys; as such the nature of the charged land was not something which weighed in the balance of justice so as to justify the grant of the injunction.
Twomey J refused the interlocutory reliefs sought by the Caseys. Insofar as final orders were concerned, the Court asked the parties to engage with each other to see if agreement could be reached regarding all outstanding matters without the need for further court time. In case it was necessary for the Court to deal with final orders, this case was put in for mention one week from the date of delivery of judgment, at 10.45 am.
Application refused.
JUDGMENT of Mr. Justice Twomey delivered on the 12th day of March, 2021
This case concerns the plaintiffs, who owe approximately €3.5 million to Allied Irish Banks plc (“AIB”), which debt has been acquired by the first named defendant (“Everyday”). This judgment considers two main issues:
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• first, the claim by the plaintiffs that an interlocutory injunction should be granted against a receiver who is seeking to sell a family farm. They claim that since the farm is agricultural land, it is not therefore commercial property or investment property, and as such they claim that the balance of justice favours the grant of the injunction, and,
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• secondly, AIB obtained a summary judgment against one of the plaintiffs on the 25th February, 2014 in default of appearance in the sum of €3,425,096. Some five and a half years after that judgment was obtained the Supreme Court held in Bank of Ireland Mortgage Bank v. O'Malley [2019] IESC 84 that claims for summary judgment must be set out in more detail than was allegedly done for the judgment obtained in this case. For this reason, and in particular because the judgment was obtained without any appearance by the plaintiffs, they claim that the judgment obtained in February 2014 is invalid.
The injunction is refused for the reasons set out below, including this Court’ s conclusion that agricultural land inherited from a parent is as much ‘commercial’ or ‘investment’ in nature as other non-agricultural property, such as a pub or shop inherited from a parent.
This is an application by the plaintiffs (“the Caseys”) for an interlocutory injunction restraining the second named defendant (the “Receiver”) from taking any steps to sell lands comprised in Folio CE22033 and located in Ennis, Co. Clare (the “Lands”). The underlying claim made by the Caseys in the proceedings is that the appointment of the Receiver over the Lands is invalid and they seek a declaration to that effect, along with certain other reliefs. At this stage of the proceedings, the Caseys seek to prevent the Receiver from offering the Lands for sale or from entering into a contract for the sale of the Lands.
The application is grounded on the affidavit of the first named defendant (“Mr. Martin Casey”). The averments made therein are adopted in full by his brother, the second named defendant (“Mr. David Casey”). The Caseys seek to prevent the sale of the Lands and place significant emphasis on the fact that the lands were inherited from their father and have been in the family for some time. The within proceedings were issued on 29th July, 2020 in response to the Caseys' belief that the lands were due to be sold by way of auction at the end of July 2020.
The relevant loan facility for the purposes of the present application is one entered into by the Caseys with AIB in 2010. This loan of almost €3 million was offered by way of Letter of Sanction dated 8th September, 2010. The Caseys signed this Letter on 28th October, 2010 thereby accepting the applicable terms and conditions. Those terms included that the loan was to be repayable on demand and was to be repaid in full by 31st March, 2011. Included as security for that loan was a Deed of Mortgage dated 31st July, 2008, wherein the Caseys agreed to charge Folio CE22033 in favour of AIB as security for the monies borrowed under the loan facility.
It is common case that the monies due under the loan facility were not repaid by the Caseys by 31st March, 2011, or indeed at any point thereafter. In 2013, summary judgment proceedings (referenced in detail below) were brought against the Caseys, resulting in AIB obtaining judgment in default of appearance against Mr. Martin Casey in the sum of €3,425,096.
The Mortgage and the loan were subsequently transferred to Everyday on 11th December, 2018 following the execution of a Global Deed of Transfer dated 2nd August, 2018 between AIB and Everyday. This transfer was not contested by the Caseys. On 19th June, 2019 letters of demand were sent to the Caseys by Link ASI Limited, on behalf of Everyday, demanding payment of the amount then owing under the terms of the loan.
By Deed of Appointment dated 8th August, 2019 (the “Deed of Appointment”), the second named defendant (the “Receiver”) was appointed over the Lands.
As noted above, the monies remain due and owing under the loan facility – a fact not disputed by the Caseys. It is the case therefore that the loans have been in default for almost ten years.
In 2013, proceedings were issued by AIB seeking summary judgment against the Caseys for the sums owed on foot of the 2010 loan facility (that case bearing Record No. 2013/2081 S). No appearance was entered by the Caseys in those proceedings. As a result, on 25th February, 2014 judgment in default of appearance in the sum of €3,425,096 was obtained against Mr. Martin Casey. It should be noted however that no judgment was obtained against Mr. David Casey. By order dated 24th June, 2019, Everyday was substituted in place of AIB in those proceedings.
Separately, on 19th June, 2019, Everyday issued a Letter of Demand to Mr. David Casey (an identical letter was also issued to Mr. Martin Casey).
During the submissions made on behalf of the Caseys, significant focus was placed on the claim that the summary judgment obtained against Mr. Martin Casey is invalid. In this regard, reliance was placed on the decision of the Supreme Court in O'Malley. The argument is made that the particulars set out in the Special Indorsement of Claim in the summary judgment proceedings were not sufficient to satisfy the requirements of Order 4, rule 4 of the RSC, as required by the decision in O'Malley.
A key claim therefore by the Caseys is that for this reason the summary judgment obtained against Mr. Martin Casey is invalid and the claim appears to be that if this judgment is invalid then the Receiver could not have been validly appointed.
Repeated assertions were made, both in the affidavits of Mr. Martin Casey and in oral submissions, that it is the intention of Mr. Martin Casey to appeal the judgment against him on the basis of the O'Malley decision. However, it is common case that no appeal was ever lodged and more significantly, no valid application been made to have the judgment set aside. It is important to note that no challenge was made to the appointment of the Receiver until almost a year after his appointment, and only, it seems, in response to the Caseys' belief that the lands were due to be sold by way of auction on 30th July, 2020 (the proceedings having been issued one day prior, on 29th July, 2020).
The law in relation to the grant of interlocutory injunctions is well-settled and was most recently restated in Merck Sharp & Dohme Corporation v. Clonmel Healthcare Limited [2019] IESC 65. It does not need...
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