McCarthy v Moroney ; Moroney v Property Registration Authority

• Jurisdiction: Ireland
• Judge: Mr. Justice Denis McDonald
• Judgment Date: 29 June 2018
• Neutral Citation: [2018] IEHC 379
• Date: 29 June 2018
• Court: High Court
• Docket Number: [RECORD NO. 2017 8108 P]

BETWEEN

SHANE MCCARTHY

PLAINTIFF

AND

PADRAIG MORONEY

AND

GERALDINE MORONEY

DEFENDANTS

AND

BETWEEN

PADRAIG MORONEY

PLAINTIFF

AND

PROPERTY REGISTRATION AUTHORITY

AND

ENNIS PROPERTY FINANCE DAC

AND

BANK OF SCOTLAND PLC

AND

SHANE MCCARTHY

DEFENDANTS

[2018] IEHC 379

McDonald J.

[RECORD NO. 2017 8108 P]

[RECORD NO. 2018 1692 P]

THE HIGH COURT

Interlocutory orders – Possession of land – Reasonable cause of action – Parties seeking interlocutory orders – Whether proceedings disclosed a reasonable cause of action

Facts: In proceedings commenced by plenary summons issued on 8 September 2017, Mr McCarthy, as the receiver appointed by Ennis Property over the lands comprised in Folios 9986, 14683, 11981, 32600F, 19275 and 15169 of the Register, Co. Clare, applied to the High Court seeking interlocutory orders against Mr and Mrs Moroney, restraining them from impeding or preventing Mr McCarthy from taking possession of the lands in question, together with certain ancillary relief. Mr Moroney, in proceedings commenced by him on 22 February 2018, applied to the High Court for an interlocutory order compelling the Property Registration Authority to remove the charges held in the name of Ennis Property from the Folios described above. Mr Moroney filed a motion on 11 April 2018 seeking an order joining the Attorney General and certain other parties including Pepper Finance DAC as defendants to the proceedings. An application was brought on 20 April 2018 by Ennis Property and Mr McCarthy in Mr Moroney's proceedings seeking orders pursuant to O. 19 r. 28 (RSC) and/or the inherent jurisdiction of the court dismissing the proceedings on the grounds that they were either frivolous or vexatious or were bound to fail and/or were an abuse of process. A further application was brought by Mr Moroney on 30 April 2018 in which he sought an order pursuant to O. 60 r. 2 (RSC) joining the Attorney General as a notice party to Mr Moroney's proceedings. Another application was the notice of motion dated 20 April 2018 brought by Bank of Scotland against Mr Moroney seeking to strike out Mr Moroney's proceedings pursuant to O. 19 r. 28 or alternatively seeking an order dismissing the proceedings pursuant to the inherent jurisdiction of the court on the grounds that they were unsustainable.

Held by McDonald J that there should be an order made in the proceedings brought by Mr Moroney dismissing those proceedings on the basis that they failed to disclose a reasonable cause of action and/or were bound to fail. McDonald J held that the application for an interlocutory injunction brought by Mr McCarthy as against Mr Moroney should be dismissed. McDonald J held that the application by Mr McCarthy for an interlocutory injunction as against Mrs Moroney should be given a new date for hearing, and for that purpose, the motion should be remitted to the judge in charge of the Chancery List to fix such a date.

McDonald J held that, subject to any submissions to the contrary that he may hear from any of the other parties, the remaining motions brought by Mr Moroney in his proceedings should be struck out. In McDonald J's view, no useful purpose would be served in dealing with those motions in circumstances where he had concluded that Mr Moroney had no cause of action in relation to the complaints made by him in those proceedings.

Application dismissed.

JUDGMENT of Mr. Justice Denis McDonald delivered on the 29th day of June 2018

Introduction

1 This judgment is delivered in respect of a number of applications (described in more detail below) which arise in the two sets of proceedings named above. In the first set of proceedings brought by Shane McCarthy against Mr. Padraig Moroney and Mrs. Geraldine Moroney, the plaintiff receiver seeks possession of the lands comprised in Folios 9986, 14683, 11981, 32600F, 19275 and 15169 of the Register, Co. Clare. These proceedings were commenced by plenary summons issued on 8 September 2017.

2 The second set of proceedings were commenced by Mr. Moroney (acting in person) against the Property Registration Authority ('PRA') and the other defendants named above on 22 February 2018. In those proceedings, Mr. Moroney seeks declaratory relief and damages. In particular, Mr. Moroney claims that there has been an unlawful attack on his private property rights as a consequence of the registration by the PRA of the second named defendant 'Ennis Property' and the third named defendant ('Bank of Scotland') as owners of registered charges previously granted by Mr. Moroney and his wife in favour of Bank of Scotland Ireland Ltd ('BOSI') over the lands comprised in the Folios described in paragraph 1 above. Mr Moroney also complains that there has been a failure by the PRA to afford him fair procedures. He also contends that there has been a failure to afford him fair procedures as a consequence of the steps taken under the Cross-Border Mergers Regulations (described in more detail below). It will be necessary in due course to analyse the claims made by Mr. Moroney in greater detail but, before doing so, I should identify the nature of the applications which came on for hearing before me on 15, 16 and 17 May 2018.

The applications before the court

3 There are a number of applications before the court as follows:

(a) In terms of date, the first application before the court is an application by Mr. McCarthy (as the receiver appointed by Ennis Property over the lands comprised in the Folios described in paragraph 1 above) for interlocutory orders against Mr. Moroney and his wife, Mrs. Geraldine Moroney, restraining them from impeding or preventing Mr. McCarthy from taking possession of the lands in question (together with certain ancillary relief which it is unnecessary, at this point, to address).

(b) In chronological sequence, the next application is Mr. Moroney's application (in the proceedings commenced by him) for an interlocutory order compelling the PRA to remove the charges currently held in the name of Ennis Property from the Folios described in para. 1 above.

(c) the next application is the motion brought by Mr. Moroney (filed on 11 April, 2018) seeking an order joining the Attorney General and certain other parties including Pepper Finance DAC ('Pepper') as defendants to the proceedings.

(d) there is also an application brought on 20 April 2018 by Ennis Property and Mr. McCarthy in Mr. Moroney's proceedings seeking orders pursuant to O. 19 r. 28 (RSC) and/or the inherent jurisdiction of the court dismissing the proceedings on the grounds that they are either frivolous or vexatious or are bound to fail and/or are an abuse of process.

(e) there is also a further application brought by Mr. Moroney on 30 April 2018 in which he seeks an order pursuant to O. 60 r. 2 (RSC) joining the Attorney General as a notice party to Mr. Moroney's proceedings.

And

(f) the remaining application (similar to that described at (d) above) is the notice of motion dated 20 April 2018 brought by Bank of Scotland against Mr. Moroney seeking to strike out Mr. Moroney's proceedings pursuant to O. 19 r. 28 or alternatively seeking an order dismissing the proceedings pursuant to the inherent jurisdiction of the court on the grounds that they are unsustainable.

4 On the first day of the hearing before me, it was agreed that the motions brought by Ennis Property and by Bank of Scotland should be heard first. On the second day of the hearing it was agreed that the hearing of those motions should then be followed by the hearing of Mr. Moroney's application for an interlocutory injunction against the defendants in his proceedings and that the application by Mr. McCarthy for an interlocutory injunction against Mr. and Mrs. Moroney would be dealt with thereafter. It was agreed that the further motions brought by Mr. Moroney to add additional parties to his proceedings would be considered after I give this judgment (to the extent that the joinder of additional parties might still be live at that stage).

Background

5 Before addressing each of the applications before the court individually, it may be helpful at this point to set out some relevant background which is apparent from the documents and affidavit evidence before the court.

6 On 1 June 2004, BOSI issued a Facility Letter to Mr. and Mrs. Moroney offering them a variable interest rate term loan of up to €500,000 for a term of 20 years together with a revolving loan of up to €100,000 for a term of four months. The facility letter recorded that the purpose of the loan was to assist in the purchase of 90 acres of land at Kilmurray, Co. Clare for €700,000 of which €100,000 was to be provided by Mr. and Mrs. Moroney themselves and the remainder was to be funded by the BOSI facilities. The Facility Letter made clear that, as security for the loan, BOSI required a first specific charge over the 90 acres to be acquired together with a first specific charge over land comprising 48 acres at Claremount, Broadford, Co. Clare and a similar charge over 4 acres of development land also at Broadford.

7 The Facility Letter (which was countersigned by Mr. and Mrs. Moroney on 2 June 2004) was stated to be subject to the BOSI General Loan Conditions issued in 2004.

8 On 29 June 2004, Mr. and Mrs. Moroney executed a Deed of Mortgage and Charge in respect of the facilities described in the Facility Letter under which they charged their property in each of the Folios mentioned above in favour of BOSI. It will be necessary in due course to consider some of the provisions of the June 2004 Deed.

9 On 21 November 2004, BOSI issued a further facility letter to Mr. and Mrs. Moroney offering a further variable interest rate loan up to €144,000 for a term of 20 years for the purpose of the purchase of what was described as a 'S. 50 apartment at Parkview Hall, Dublin Road, Limerick'. The Facility Letter made clear that this loan would be offered on the basis of the...