Moore v Tennant
| Jurisdiction | Ireland |
| Judge | Mr. Justice Tony O'Connor |
| Judgment Date | 08 July 2016 |
| Neutral Citation | [2016] IEHC 498 |
| Docket Number | [2015 No. 4115 P] |
| Court | High Court |
| Date | 08 July 2016 |
AND
AND
[2016] IEHC 498
[2015 No. 4115 P]
THE HIGH COURT
Land & Conveyancing – Strike out application – O. 19(28) of the Rules of the Superior Courts – Bona fide purchaser – Property acquired – Proper enquiry – S. 72 (1) (j) of the Registration of Title Act, 1964 – Breach of right of redemption.
Facts: The third named defendant sought an order to strike out the proceedings instituted by the plaintiffs against the third named defendant on the ground that the proceedings were bound to fail. The plaintiffs claimed that the third named defendant acquired the property and procured the registration of the transfer with a right falling under s. 72 (1) (j) of the 1964 Act, without proper inquiry of the plaintiffs' claims, including the breach of the plaintiffs' right of redemption. The third named defendant argued that he had purchased the property as a bona fide purchaser for consideration and had no connection with the receiver or the second named defendant.
Mr. Justice Tony O'Connor refused the application of the third named defendant. The Court held that the Court could not make a determination on facts on the present application and directed the plaintiffs to issue an appropriate motion in lieu of o. 36 and o.63 of the Rules of the Superior Courts. The Court held that it must have high regard to the claim of the plaintiffs that the third named defendant ought to suffer for procuring the land without vacant possession and lack of enquiry imposed on the third named defendant by virtue of existence of s. 72 of the 1964 Act rights.
This application has caused the Court to consider s. 72 (1) (j) of the Registration of Title Act 1964 ( ‘the 1964 Act’) and s. 108(5) of the Land and Conveyancing Law Reform Act 2009 ( ‘the 2009 Act’) in addition to the application of the long established principles relevant to an application to strike out pursuant to O. 19(28) of the Rules of the Superior Courts and the inherent jurisdiction of the court.
The Court emphasises that this judgment does not :
(a) determine whether the potential right to redeem a mortgage as alleged by the plaintiffs is a right which falls within s. 72(1) of the 1964 Act;
(b) decide how and the extent to which the third named defendant purchaser of land is entitled to rely upon s.108(5) of the 2009 Act. S.108 (5) of the 2009 Act provides that a person (like the third named defendant) which pays money to a receiver, (such as the first named defendant) is not required to enquire whether the receiver is authorised to act in the sale of lands on premises.
This is a summary type application to strike out the claims of the plaintiffs on the grounds that the claims are bound to fail and I set out the long established principles which the Court must apply later. At this stage the Court will set out the facts as they have been disclosed by way of affidavit and exhibits without any cross examination and it is stressed that the Court is not making any finding as to fact which could bind another Court.
The following are facts which are accepted purely for the purposes of this motion issued by the third named defendant to strike out the claim of the plaintiff against the third named defendant:-
• 2002: The plaintiffs acquired 10 Meadowlands Lane, otherwise known as and in this judgement called ‘Broomfield’ in Midleton, Co. Cork, comprised within folio 98213F Co. Cork.
• 2006: National Irish Bank advanced €650,000 to the plaintiffs secured by way of a charge on Broomfield on foot of a facility requiring the payment of interest only and for a period of some twenty years.
• 2007: The second named defendant acquired the rights and obligations of National Irish Bank
• April, 2010: The plaintiffs were permitted by the second named defendant to make reduced repayments for six to twelve months following the vacating of
• Letters which have not been disclosed to the Court for the purposes of this application were exchanged between solicitors for the plaintiffs and the second named defendant on 20th October, 2011 and 16th November, 2011.
• The second named plaintiff resumed providing crèche facilities and has done so there until the end of June, 2016.
• At some stage after the period for reduced payments, the plaintiffs recommenced the full repayments due to the second named defendant.
As of 24th February, 2014 the balance due by the plaintiffs on foot of the facility stood at €574,740.25.
By letter dated 24th February, 2014, the second named defendant wrote to the plaintiffs, the contents of which were not available to the court for the purposes of this application.
Under cover of letter dated 5th March, 2014 (undisclosed to the court) the plaintiffs were given a copy of the deed of appointment of the first named defendant as receiver which lead to the letter from the plaintiffs' solicitor on 10th March, 2014. That letter threatened the first named defendant with an application by way of injunction to restrain the first named defendant from exercising any right over Broomfield on account of the plaintiffs' contention that the first named defendant's appointment and alleged exercise of powers under that agreement were invalid.
By contract dated 27th May, 2014 the first named defendant as one of a number of vendor receivers agreed to sell a multitude of properties called ‘Tranche 2 Project Circle’ to Finsbury Circle Limited ( ‘FCL’). Included in those properties was ‘Broomfield’. This contract effectively agreed to sell the properties ‘as is’. Special condition 4.11, for example, provided that the vendor gave ‘no warranty as to possession of any property, whether or not the subject of a letting agreement and shall not be required to deliver a vacant possession on completion. General condition 21 stands deleted’.
By novation agreement dated 15th July, 2014 FCL novated its interest in the said contract of 27th May, 2014 to the third named defendant.
On 8th September, 2014 the third named defendant was registered by the Property Registration Authority (‘ PRA’) as owner of Broomfield following the completion of the sale of Broomfield by the first named defendant in July, 2014.
The plaintiffs learned of the sale of Broomfield on 30th October, 2014 on receipt of a letter from the second named defendant (undisclosed to the Court) which prompted a letter dated 30th October, 2014 from the plaintiffs' solicitors that referred to his letter of 16th October, 2014 (undisclosed to the Court) and his unanswered telephone messages to the solicitor for the second named defendant. He also mentioned that he found it...
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