McCoy v Oriental Handcrafts Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Reynolds
• Judgment Date: 28 February 2019
• Neutral Citation: [2019] IEHC 121
• Docket Number: [2017 No. 11236 P.]
• Court: High Court
• Date: 28 February 2019

[2019] IEHC 121

THE HIGH COURT

Reynolds J.

[2017 No. 11236 P.]

BETWEEN

PATRICK MCCOY

PLAINTIFF

AND

ORIENTAL HANDCRAFTS LIMITED

AND

TOM KAVANAGH

DEFENDANTS

Specific performance – Contract for sale – Abuse of process – Defendants seeking an order striking out and/or dismissing the proceedings – Whether the pleadings constituted an abuse of process

Facts: The plaintiff, Mr McCoy, sought an order for specific performance of a contract for sale dated 5th September, 2001, made between the plaintiff and the first defendant, Oriental Handcrafts Ltd, whereby the plaintiff agreed to buy and the first defendant agreed to sell a property known as Apartment 26, Harbourside, Newport, in the county of Mayo in consideration of €12,697 (£10,000), less the deposit as agreed. Further, the plaintiff sought a declaration that he was entitled to a moiety interest in the property, commensurate with the contractual deposit already paid together with other ancillary relief. The defendants applied to the High Court for an order pursuant to O. 19 of the Rules of the Superior Courts and the inherent jurisdiction of the court to strike out and/or dismiss the proceedings on the grounds that the pleadings disclosed no reasonable cause of action as against the defendants or either of them, that they constituted an abuse of process, that they were frivolous and vexatious and/or that they were bound to fail.

Held by Reynolds J that any merit that the plaintiff may have had in his defence to the application was overwhelmingly defeated by his delay in initiating the proceedings.

Reynolds J held that the court would accede to the application to dismiss the plaintiff’s claim in circumstances where she was satisfied that it constituted an abuse of process and was bound to fail.

Application granted.

JUDGMENT of Ms. Justice Reynolds delivered on the 28th day of February, 2019

Introduction

1 This is an application for an order pursuant to O. 19 of the Rules of the Superior Courts and the inherent jurisdiction of the court to strike out and/or dismiss the proceedings on the grounds that the pleadings disclose no reasonable cause of action as against the defendants or either of them, that they constitute an abuse of process, that they are frivolous and vexatious and/or that they are bound to fail.

2 In the within proceedings, the plaintiff seeks an order for specific performance of a contract for sale dated 5th September, 2001, made between the plaintiff and the first named defendant, whereby the plaintiff agreed to buy and the first named defendant agreed to sell a property known as Apartment 26, Harbourside, Newport, in the county of Mayo in consideration of €12,697 (£10,000), less the deposit as agreed.

3 Further, the plaintiff seeks a declaration that he is entitled to a moiety interest in the property, commensurate with the contractual deposit already paid together with other ancillary relief.

Background

4 In 2009, the property was mortgaged as security for a loan facility granted to the first named defendant by Anglo Irish Bank Corporation Ltd by virtue of a facility letter dated 10th August, 2009.

5 By mortgage debenture dated 4th November, 1999 made between the first named defendant and Anglo Irish Bank Corporation Ltd, the first named defendant mortgaged the property as security for its liabilities to the bank, including the loan facility referred to above.

6 Pursuant to Clause 36.1 of the mortgage debenture, it was agreed that the first named defendant ‘may not assign its benefit, interest or obligation under this Deed.’

7 It is common case that the lender's interest in the said loan facility together with the associated security was subsequently acquired by Launceston Property Finance Ltd and that Launceston Property Finance Ltd was subsequently registered as the owner of the mortgage and charge.

8 By Deed of Appointment of receiver dated 24th August, 2016, the plaintiff was appointed as a receiver over the said property.

The Second Named Defendant's Application to Strike Out

9 In the grounding affidavit, the second named defendant sets out...