Oman v Oman

• Jurisdiction: Ireland
• Judge: Mr. Justice Tony O'Connor
• Judgment Date: 13 June 2018
• Neutral Citation: [2018] IEHC 406
• Docket Number: [2018 No. 4180 P.]
• Court: High Court
• Date: 13 June 2018

[2018] IEHC 406

THE HIGH COURT

O'Connor Tony J.

[2018 No. 4180 P.]

BETWEEN

ANGELA OMAN

PLAINTIFF

AND

JAMES OMAN, ALLIED IRISH BANKS PLC

AND

STEPHEN TENNANT

DEFENDANTS

Beneficial interest – Arguable case – Lis pendens – Defendants seeking orders striking out the proceedings – Whether the proceedings were an abuse of process

Facts: The plaintiff, Ms Oman, in proceedings instituted by plenary summons issued on 11th May, 2018, against the first defendant (her husband, Mr Oman), the second defendant (Allied Irish Banks) and the third defendant (the receiver, Mr Tennant), principally sought a declaration that she had a beneficial interest in 114–116 Capel Street, Dublin. She also sought: (i) a declaration that the mortgage of 2nd March, 2004, between her husband and Allied Irish Banks is null and void; (ii) damages for slander of her title to alleged beneficial interest in the premises; (iii) a declaration that the appointment by Allied Irish Banks of the receiver over the premises is null and void; (iv) an order prohibiting the disposal of the premises; and (v) a lis pendens. By notice of motion issued on 1st June, 2018, Allied Irish Banks and the receiver sought orders striking out the proceedings on one or more of the following grounds: (i) they were an abuse of process; (ii) they were bound to fail; (iii) they disclosed no reasonable cause of action and/or (iv) they were frivolous and/or vexatious. In addition, they sought an order vacating the lis pendens registered by the plaintiff affecting the premises.

Held by the High Court (O'Connor J) that the plaintiff did not have an arguable case and, if she had, it would be defeated by the plea of acquiescence and delay. O'Connor J directed the striking out of the plaintiff's claim as against the second and third defendants.

O'Connor J held that the collusion between the plaintiff and her husband who was the subject of an order of Baker J was evidenced by the similarity of the pleadings in both cases; moreover, the plaintiff's husband had no interest in the premises and having struck out the claim against the other defendants it followed that there was no bona fide reason for the prosecution of these proceedings against the plaintiff's husband, the first defendant seeking an order in respect of the premises. Therefore, O'Connor J would make an order vacating the lis pendens registered by the plaintiff against the premises.

Application granted.

EX TEMPORE JUDGMENT of Mr. Justice Tony O'Connor delivered on the 13th day of June, 2018

1 The plaintiff in these proceedings instituted by plenary summons issued on 11th May, 2018, against her husband, Allied Irish Banks (' AIB') and the third named defendant (' the receiver') principally seeks a declaration that she has a beneficial interest in 114 – 116 Capel Street, Dublin (' the premises'). She also seeks:-

(i) a declaration that the mortgage of 2nd March, 2004, between her husband and AIB is null and void;

(ii) damages for slander of her title to alleged beneficial interest in the premises;

(iii) a declaration that the appointment by AIB of the receiver over the premises is null and void;

(iv) an order prohibiting the disposal of the premises; and

(v) a lis pendens.

Notice of Motion

2 By notice of motion issued on 1st June, 2018, AIB and the receiver (' these defendants') sought orders striking out the proceedings on one or more of the following grounds:-

(i) an abuse of process;

(ii) they are bound to fail; and

(iii) they disclose no reasonable cause of action and/or

(iv) are frivolous and/or vexatious.

3 In addition, these defendants seek an order vacating the lis pendens registered by the plaintiff affecting the premises. I am somewhat familiar with the facts up to 21st November, 2017, because I made an order on that day in proceedings having record number [2016 No. 1618 P.] in which these defendants sought possession of the premises from the plaintiff's husband who is the first named defendant in these proceedings. That order was made following an agreement whereby the first named defendant agreed to deliver up possession of the premises with a stay on execution until 1st June, 2018.

4 The plaintiff does not deny that she knew those proceedings were going ahead and she does not deny her knowledge of the terms of the consent order made thereafter. Moreover, the first named defendant in open court, having formally sworn to tell the truth, confirmed that his family members were on notice of those proceedings and he did not inform the Court that the plaintiff here did not understand that she did not have a role or interest in the outcome.

5 No explanation was offered by or on behalf of the plaintiff as to why she delayed until three weeks before the expiration of the stay, to commence these proceedings. The height of the plaintiff's reason for delay is set out in para. 14 of her replying affidavit sworn 8th June, 2018, that although aware of what was going to happen and what happened on 21st November she avers:-

'I was never named as defendant in the proceedings. I did not believe or understand that I had any role in them.'

6 This averment can best be described as cautiously cute but could also be characterised as disingenuous or misleading. I say this because she gives no basis for the belief or understanding that she had no role in those proceedings which were concluded in November 2017.

7 I specifically advised at the commencement of the submissions of Mr. Fanning, Senior Counsel for these defendants, that...