Pepper Finance Corporation (Ireland) DAC v Persons unknown in Occupation of the Property known as 21 Little Mary Street Dublin 7
| Jurisdiction | Ireland |
| Judge | Ms. Justice Máire Whelan |
| Judgment Date | 14 October 2021 |
| Neutral Citation | [2021] IECA 258 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Appeal Number: 2020/278 |
[2021] IECA 258
Whelan J.
Ní Raifeartaigh J.
Binchy J.
Appeal Number: 2020/278
Appeal Number: 2020/279
THE COURT OF APPEAL
Possession of property – Surrender – Jurisdiction – Appellant seeking to be heard in respect of either set of proceedings – Whether the judge erred in refusing to allow the appellant to address the court
Facts: The appellant, Mr Beades, brought two appeals against the judgment and orders of the High Court (Reynolds J) made in the proceedings on 25 November 2020. Though not named as a defendant in the proceedings, the appellant appeared at the hearing of two motions which had issued in the proceedings seeking as against the defendants, the persons in occupation of the respective properties, orders, inter alia, for the immediate surrender of possession and control of the properties to the respondent, Pepper Finance Corporation (Ireland) DAC, and orders for the immediate delivery up to the respondent of all keys, alarm codes and/or security and access devices in respect of each property together with interlocutory orders as against the persons in occupation of the respective properties pending the trial of the actions. The appellant did not reside at either premises. He attended before the court at the hearing of the interlocutory applications on 25 November 2020. The appellant contended that the High Court had no jurisdiction to deal with the applications before it. In particular, the appellant argued that, in circumstances where there were five appeals before the Court of Appeal in respect of which judgment was then pending in connection with the possession orders made in favour of the respondent’s predecessor in title, IIB Homeloans Ltd, on 23 June 2008, “if the possession orders fall in the appeals court, there is no possession order to be transferred in this case and, therefore, this court has no jurisdiction until the appeals court actually rules on that matter” (p. 15, lines 4 to 8). Reynolds J rejected those submissions and concluded that the appellant had no right of audience in respect of the two motions for interlocutory orders before her. From the said determinations, the appellant appealed to the Court of Appeal.
Held by Whelan J that the entry of an appearance did not confer rights on the appellant to be a party to the proceedings or to be heard in respect of either set of proceedings. Whelan J held that the judge did not err in refusing to allow the appellant to address the court. Whelan J found that the judge in all the circumstances did not deny the appellant a constitutional right to defend economic or property rights, neither of which were the subject matter of the proceedings. Whelan J held that the judge did not display bias of any kind towards the appellant; the appellant did not establish an entitlement to a hearing in respect of either set of proceedings, nor did he establish locus standi to be a party to either set of proceedings. Whelan J held that the appellant had been a trespasser upon the properties and each of them since 23 June 2008 by act and operation of law. Whelan J held that the respondent held an order conferring upon it the right to recover possession of the properties as against the appellant; as such it was an order in personam directed against and binding only upon the appellant. Whelan J held that this was the reason why it was necessary for the respondent to bring the proceedings against parties who had been put into occupation or possession of the property by or with the acquiescence of the appellant subsequent to the order for possession having been made and who were refusing to vacate the property. Whelan J held that the proposition that the appellant should be allowed to re-litigate all issues through the medium of having himself made a defendant in the possession proceedings was contrary to the rule in Henderson v Henderson (1843) 3 Hare 100.
Whelan J held that both appeals would be dismissed.
Appeals dismissed.
JUDGMENT of Ms. Justice Máire Whelan delivered on the 14th day of October 2021
These two appeals are brought by Jerry Beades against the judgment and orders of Reynolds J. made in the above entitled proceedings on 25 November 2020. Though not named as a defendant in the proceedings, the appellant appeared at the hearing of two motions which had issued in the proceedings seeking as against the persons in occupation of the said respective properties orders, inter alia, for the immediate surrender of possession and control of the properties to the respondent and orders for the immediate delivery up to the respondent of all keys, alarm codes and/or security and access devices in respect of each property together with interlocutory orders as against the persons in occupation of the said respective properties pending the trial of the said actions.
The appellant does not reside at either premises. He attended before the court at the hearing of the interlocutory applications on 25 November 2020. The appellant contended that the High Court had no jurisdiction to deal with the applications before it. In particular, the appellant argued that, in circumstances where there were five appeals before the Court of Appeal in respect of which judgment was then pending in connection with the possession orders made in favour of the respondent's predecessor in title, IIB Homeloans Ltd. (“IIB”), on 23 June 2008, “if the possession orders fall in the appeals court, there is no possession order to be transferred in this case and, therefore, this court has no jurisdiction until the appeals court actually rules on that matter” (p. 15, lines 4 to 8). Reynolds J. rejected these submissions and concluded that the appellant had no right of audience in respect of the two motions for interlocutory orders before her. From the said determinations, the appellant appeals.
Under and by virtue of a mortgage dated 12 June 2003, the appellant created a mortgage in favour of the predecessor in title to the respondent by way of security in respect of his outstanding liabilities to IIB including, inter alia, those arising pursuant to a loan facility letter dated 20 May 2003 whereby a sum of €1,200,000 was advanced to the appellant. The said mortgage was secured over the properties known as 21 Little Mary Street, Dublin 7 and 31 Richmond Avenue, Fairview, Dublin 3 – both properties in the City of Dublin.
Thereafter, defaults having arisen in relation to compliance with the terms of the said mortgage, IIB instituted proceedings by way of special summons on 29 November 2006 seeking possession of the said secured properties.
The possession proceedings came on for hearing before Dunne J. in the High Court and on 23 June 2008 an order was made requiring the appellant to surrender possession of the said respective properties to IIB, the mortgagee.
By notice of appeal dated 16 July 2008, the appellant appealed the said order for possession to the Supreme Court. That appeal was ultimately heard on 29 April 2014 and judgment in respect of same was delivered on 12 November 2014, dismissing the said appeal and affirming the order for possession previously made in the High Court on 23 June 2008.
There are persons in occupation and possession of both properties. No such person was in occupation and possession of the property at the date that the order for possession was made by Dunne J. in the High Court on 23 June 2008. There was a clause in the IIB facility letter which provided:-
“34. The Lender consents to the Borrower creating a tenancy in respect of the premises on the following terms:
(i) The term of the tenancy must not under any circumstances exceed 1 year. No options to extend such a tenancy will be permitted.
(ii) The tenancy must be in writing and at an arms [ sic] length transaction between the parties.
(iii) The rent reserved must represent the open market rental of the premises.
(iv) A solicitor's certified copy of the tenancy agreement must be furnished to the Lender once executed by the tenant. Any extension of a new tenancy must comply with the above provisions.”
As a matter of law, once the order for possession was made on 23 June 2008, the appellant as mortgagor ceased to have the right to remain in possession or to be in receipt of the rents and profits from the said properties. His status in law was and remains that of trespasser.
In respect of the proceedings seeking possession against the occupiers of the said respective properties, it appears that the premises at 21 Little Mary Street is divided into five units. It further appears that the persons in occupation pay rent to the appellant. All of them went into occupation subsequent to the making of the order for possession in the High Court aforesaid.
As regards the premises at 31 Richmond Avenue, it appears to be divided into seven separate units occupied by various persons, having been put into possession by the appellant who is allegedly in receipt of rent from the said occupiers. Again, all of the occupiers went into possession subsequent to the making of the order for possession.
The determination of the High Court was succinctly outlined by the High Court judge at p. 27, line 23 et seq. of the transcript of 25 November 2020:-
“Judge: Mr. Beades, if you're asking for clarification as to whether or not I was of the view that you had a right of audience, I am satisfied that you don't. These proceedings are not addressed to you in any way. They are addressed to the occupants of the property, two of whom seem to have...
To continue reading
Request your trial