Ossory Road Enterprise Park Ltd v Orlington Company CLG and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Allen
• Judgment Date: 27 October 2023
• Neutral Citation: [2023] IECA 256
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal Number: 2023/79

In the Matter of Orlington Company CLG

And in the Matter of An Application by Ossory Road Entreprise Park Limited

Between

Ossory Road Enterprise Park Limited

Applicant/Respondent

and

Orlington Company CLG, Declan Rogers and Brid Rogers

Respondents/Appellants

[2023] IECA 256

Haughton J.

Pilkington J.

Allen J.

Appeal Number: 2023/79

THE COURT OF APPEAL

CIVIL

Rectification – Register – Company – First and second appellants appealing against the judgment and order for the rectification of the register of members of the first appellant – Whether the judge erred in deciding the application for rectification before the conclusion of the plenary proceedings

Facts: The first and second respondents/appellants, Orlington Company CLG (the Company) and Mr Rogers, by notice of appeal dated 4th April, 2023, appealed to the Court of Appeal against the judgment of the High Court (Stack J) delivered on 24th January, 2023 ([2023] IEHC 34) and consequent order made on 7th March, 2023 pursuant to ss. 169 and 173 of the Companies Act 2014 for the rectification of the register of members of the Company so as to record that the applicant/respondent, Ossory Road Enterprise Park Ltd (OREP), is a member of the Company and to remove Mr Rogers as a member of the Company. There were nineteen numbered paragraphs all directed to the fact that the High Court decided the Companies Act application before Mr Roger’s counterclaim in the plenary proceedings had been heard. Several of the numbered grounds of appeal were not grounds of appeal but statements or assertions of law and a reprise or summary of Mr Rogers’ defence and counterclaim in the plenary proceedings. It was repeatedly said that the High Court judge acted precipitately in determining the Companies Act application before the plenary action had been heard but absent was any suggestion that the judge erred in her construction of OREP’s title documents or the Company’s articles of association. The written legal submissions filed on behalf of the Company and Mr Rogers sought to revive some of the other arguments which had been made before the High Court and the written submissions filed on behalf of OREP engaged with those arguments but the sole issue properly before the court was whether the High Court judge erred in deciding the Companies Act application before the conclusion of the plenary proceedings.

Held by Allen J that it was common case on the appeal as it was before the High Court that the judge had a discretionary jurisdiction to decide the title issue. Allen J held that there was no good reason advanced in the High Court as to why the judge ought not to exercise that jurisdiction and there was no good reason advanced on the appeal as to why the High Court judge ought not to have exercised that jurisdiction. Allen J found that there was no argument on the appeal that the judge – having decided to decide the issue –erred in her conclusions. Allen J held that the resolution of the factual issues subtending Mr Rogers’ counterclaim in the plenary proceedings to set aside the sale – on the basis that it was voidable – was not required in order to determine the application under ss. 169 and 173 of the Companies Act 2014 for the rectification of the register of members of the Company.

Allen J dismissed the appeal and affirmed the order of the High Court – including that the costs of the proceedings in that court be paid by Mr Rogers and that there should be no order as to the Company’s costs. OREP having been entirely successful on the appeal, it seemed to Allen J that it was entitled to an order for its costs. While nominally the Company was an appellant, it appeared to Allen J that the real protagonist was Mr Rogers. Allen J proposed that it was Mr Rogers who should be ordered to pay the costs.

Appeal dismissed.

NO REDACTION NEEDED

JUDGMENT of Mr. Justice Allen delivered on the 27th day of October, 2023 .

Introduction

1 . This is an appeal by Orlington Company CLG (“the Company”) and Mr. Declan Rogers (“Mr. Rogers”) against the judgment of the High Court (Stack J.) delivered on 24th January, 2023 ( [2023] IEHC 34) and consequent order made on 7th March, 2023 pursuant to ss. 169 and 173 of the Companies Act, 2014 for the rectification of the register of members of the Company so as to record that Ossory Road Enterprise Park Limited (“OREP”) is a member of the Company and to remove Mr. Rogers as a member of the Company.

Background

2 . Ossory Industrial Estate is an industrial estate of fifteen units at Ossory Road, Dublin 3. The Company is the owner of the estate roads. OREP is the owner of nine of the units and claimed to be entitled, as such, to be a member of the Company. Mr. Rogers, the former owner of those units, is shown on the Company's register of members as a member of the Company. OREP's case is that since its purchase of the units, Mr. Rogers was no longer entitled to be a member of the Company.

3 . Ossory Industrial Estate appears to have been originally developed in phases between 1979 and 1988. By current standards, the paperwork was unusual. Each of the units was conveyed to the purchaser in fee simple, with a right of way and various wayleaves over the estate roads, and what nowadays would be referred to as the common areas were conveyed by the developer to the Company in 1988. The Company is described as the management company and that appears to have been the intention at the time it was incorporated but – at least in relation to the first two phases – there is no formal management structure. Between 1995 and 1998, Mr. Rogers bought nine of the units and became a member and director of the Company. Mrs. Brid Rogers also became a director.

4 . I pause here to say that while Mrs. Rogers was party to the proceedings in the High Court, she is not party to the appeal.

5 . On 13th January, 2005 Mr. Rogers mortgaged each of the units to Allied Irish Banks p.l.c. (“AIB”). For some reason – or in error – the mortgages were by way of demise for a term of 10,000 years, less the last three days, rather than by conveyance.

6 . At some time prior to 2016 the mortgages fell into arrears and on 26th February, 2016 AIB appointed Mr. Ken Tyrrell as receiver of the rental income from the properties. All the appearances are that notwithstanding the appointment of the receiver Mr. Rogers continued to manage the properties and – directly or indirectly – to receive the rents.

7 . By deed of conveyance and assignment dated 17th January, 2020, AIB transferred the loans and security to Everyday Finance Limited (“Everyday”) which novated the appointment of Mr. Tyrrell: but Mr. Rogers continued to collect the rents.

8 . In 2021 – in a move which until recent years would have been very unusual but has since been seen more frequently – Everyday decided to sell the mortgaged properties with Mr. Rogers in possession. The properties were advertised for sale as a job lot by online auction by a firm called BidX1. As is the invariable practice of the purchasers of so-called distressed loans, the conditions of sale were so hollowed out by special conditions that the properties were effectively offered for sale “warts and all” for all of the estate, right, title and interest of Everyday, and without vacant possession.

9 . On 9th April, 2021 the properties were knocked down to a company called Tigway Limited (“Tigway”) for €1,424,000 but for whatever reason, that sale was not completed.

10 . On 13th April, 2021 Mr. Rogers, at that time acting pro se, issued a plenary summons under record number 2021 No. 2378P naming as defendants AIB, Everyday and Mr. Tyrrell and on the same day registered the action as a lis pendens. Appearances were entered on 26 ^th April, 2021 and 10th May, 2021 but the action did not progress. That summons was not in the papers before the court but Mr. Mulloy S.C., for the appellants, agreed that whatever the reliefs formally claimed may have been, the object of those proceedings was to impede or prevent the sale.

11 . On 13th September, 2021 a plenary summons was issued by Tigway against Everyday claiming specific performance of the contract made on 9th April, 2021, a declaration that a completion notice served by Everyday was null and void, and a declaration that Everyday was not entitled to forfeit Tigway's deposit. That action was registered as a lis pendens on 22nd September, 2021. In the meantime, an appearance had been entered on behalf of Everyday on 16th September, 2021. It is not apparent from the papers before the court what became of that action.

12 . By a series of conveyances dated 6th December, 2021 the properties were purportedly conveyed to OREP. I say purportedly conveyed because, as I have said, the mortgages to AIB were by demise for 10,000 years – less the last three days – rather than by conveyance, so that by the letter of the law, all that Everyday could have sold was the right to occupy the property for about 9,984 years – less the last three days. The total purchase consideration was €1,251,000.

13 . As I will come to, there is a dispute as to the circumstances in which the properties came to be sold to OREP.

14 . Having taken the assurances on 6th December, 2021, OREP promptly issued a plenary summons (2021 No. 6816) against Mr. Rogers claiming various injunctions restraining trespass and interference with the collection of the rents and – by leave obtained on 17th December, 2021 – issued a motion on 20th December, 2021 seeking interlocutory orders. OREP's interlocutory motion was case managed in the High Court chancery list and was heard by the High Court (Stack J.) on 6th April, 2022. For the reasons given in an ex tempore judgment on 8th April, 2022, Stack J. restrained Mr. Rogers from collecting the rents from all but one of the units and directed that the rents should be collected by OREP and lodged to its solicitors' client account.

15 . On the...