Pepper Finance Corporation (Ireland) DAC v Persons unknown in Occupation of the Property known as 21 Little Mary St, Dublin 7

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMs. Justice Donnelly
Judgment Date24 June 2021
Neutral Citation[2021] IECA 277
Docket NumberRecord No.: 2021/124 Record No.: 2021/125

[2021] IECA 277

THE COURT OF APPEAL

Donnelly J.

Noonan J.

Ní Raifeartaigh J.

Record No.: 2021/124

Record No.: 2021/125

Between/
Pepper Finance Corporation (Ireland) DAC
Respondent
and
Persons unknown in Occupation of the Property known as 21 Little Mary St, Dublin 7
Applicants
Pepper Finance Corporation (Ireland) DAC
Respondent
and
Persons unknown in Occupation of the Property known as 31 Richmond Avenue, Dublin 3
Applicants

Injunctions – Extension of time – Stay – Applicants seeking to extend time in which to lodge an appeal, to adduce new evidence and seeking a stay pending determination of motions – Whether there was a significant delay in seeking to appeal

Facts: Reynolds J, on the 25th November, 2020 ordered that the applicants and each of them, their servants and/or agents and all other persons having notice of the said order: (1) immediately surrender possession and control of the property named in the title of each set of proceedings; and (2) immediately deliver up to the respondent, Pepper Finance Corporation (Ireland) DAC (Pepper), all keys alarm codes and/or security and access devices in relation to the property. The injunction orders also included various injunctions restraining the applicants and each of them, their servants and/agents and all other persons having notice of the said order from impeding or obstructing Pepper in taking possession, securing the property, selling or renting the property or trespassing or interfering without the prior written consent of Pepper, collecting or attempting to collect any rent, holding themselves out as having any entitlement to sell, rent or otherwise grant any entitlement to possession, making contact with any current or prospective tenants or purchaser of any portion of the property without the written consent of Pepper. It was further ordered that Pepper’s solicitors be at liberty to notify the making of the order to the applicants, their servants and/or agents and all other persons by hand delivery and ordinary pre-paid post. The order was stayed until the 14th January, 2021. The applicants applied to the Court of Appeal to extend time in which to lodge an appeal, to adduce new evidence and seeking a stay pending determination of the motions and other motions which were before the Court on the 13th July 2022.

Held by Donnelly J that the applicants had not satisfied the first two criteria in Eire Continental Trading Company Ltd v Clonmel Foods Ltd [1955] I.R. 170. Donnelly J held that they did not form an intention to appeal within the prescribed time (even accepting that it only ran from the time they said they were notified of the orders). Donnelly J held that there was a very significant delay in seeking to appeal. She held that in the interim, the applicants were able to file full defences by way of affidavits and submissions to the High Court in defence of a motion to attach and commit; that motion took two days at hearing and judgment was reserved. Donnelly J held that it was a week after the hearing before advices were given and instructions given to appeal. She held that it was two weeks after the motion to attach and commit was heard before the application to the Court of Appeal was made. She held that there was nothing akin to mistake in the late filing of the appeal. On the third criterion set out in Eire Continental, she was satisfied that as regards the central contention of the applicants which was that they had valid tenancies as against Pepper, there was no arguable ground. As to arguments about lack of service, lack of candour or the making of the orders against “persons unknown”, Donnelly J was satisfied that even if an arguable ground had been made out, the balance of justice lay in refusing the applicants an extension of time in which to appeal. Donnelly J found that no other arguable ground had been identified.

Donnelly J refused the applications.

Applications refused.

JUDGMENT of the court ( Ex tempore) delivered on the 24th day of June, 2021 by Ms. Justice Donnelly

1

There are two applications before this Court arising in respect of two separate proceedings. There are common aspects to the applications however. Both are applications to extend time in which to lodge an appeal, to adduce new evidence and seeking a stay pending determination of these motions and other motions which are before this Court on the 13th July next. Both concern the same plaintiff (hereafter, “Pepper”) who obtained orders on the same date requiring the defendants in each case (and persons having notice of the orders) to surrender possession and control of the properties named in the title to the proceedings. The solicitor for the applicants has sworn almost identical affidavits in each application. The applications were heard together. For those reasons it is appropriate to give a single judgment.

2

On the 25th November, 2020 Reynolds J. ordered (“the injunction orders”) that the defendants and each of them their servants and/or agents and all other persons having notice of the said order

  • (1) immediately surrender possession and control of the property named in the title of each set of proceedings; and

  • (2) immediately deliver up to Pepper all keys alarm codes and/or security and access devices in relation to the property.

3

The injunction orders also included various injunctions restraining the defendants and each of them, their servants and/agents and all other persons having notice of the said order from impeding or obstructing the plaintiff in taking possession, securing the property, selling or renting the property or trespassing or interfering without the prior written consent of Pepper, collecting or attempting to collect any rent, holding themselves out as having any entitlement to sell, rent or otherwise grant any entitlement to possession, making contact with any current or prospective tenants or purchaser of any portion of the property without the written consent of Pepper.

4

It was further ordered that Pepper's solicitors be at liberty to notify the making of the order to the defendants their servants and/or agents and all other persons by hand delivery and ordinary pre-paid post. The order was stayed until the 14th January, 2021.

5

The original proceedings date back many years and originally arose out of a bank debt. Successive parties have acquired an interest in the properties which are owned by a Mr. Jerry Beades but mortgaged by him to the IIB Homeloans Limited (hereinafter “the bank”). By order of the High Court made on the 22nd June, 2008, an order for possession of both properties were made. The Supreme Court gave final judgment for possession of both properties on the 12th November, 2014.

6

The defendants (the applicants), save for two people, Ms. Hanrahan and Mr. Petrut (the appellants), did not enter an appearance in the High Court. Those two appellants appealed within time against the Order of Reynolds J. The Court was told that Mr. Petrut resides in 31 Richmond Avenue and Ms. Hanrahan resides in 21 Little Mary Street.

7

There are five outstanding appeals in total before the Court of Appeal on the 13th July, 2021 relating to the injunction orders. One appeal each is taken by Ms. Hanrahan and Mr. Petrut. Three are taken by Mr. Beades who is not named in either of these proceedings nor does he reside in either of these properties. Mr. Beades is appealing the injunction orders and also the substitution order of the High Court dated the 18th November, 2020 by which Pepper was substituted as sole plaintiff in related proceedings and was granted liberty to execute on foot of the 2008 possession order. Ms. Hanrahan, Mr. Petrut and Mr. Beades were refused an application for a stay by Noonan J. pending those appeals.

8

Eoghan O'Reilly, solicitor from the firm of FH O'Reilly, has sworn two affidavits in each set of proceedings, each pair of which is virtually identical. He seeks to set out the background against which he claims the application should be viewed. He says he represents 20 adults in total. All his clients, save the two named above, claim that they did not receive notice of original proceedings or the making of the order.

9

It is apparent that Mr. O'Reilly, the solicitor for the applicants in these proceedings also seeks to represent Ms. Hanrahan and Mr. Petrut and he seems to wish to revisit the application for a stay on their behalf.

The claim that these applicants only seek to amend the appeals of Ms. Hanrahan and Mr. Petrut

10

In written and oral submissions, it was urged on the Court that this was nothing more than an application to amend the existing appeals of the above appellants and by adding grounds of appeal. The applicants claim that all is required is an amendment to the Notice of Motion already in existence for Ms. Hanrahan and Mr. Petrut to include all occupants of the properties. That approach was permitted by the Supreme Court in Balkanbank v. Taher (Unreported, Supreme Court, Hamilton C.J. and O'Flaherty J., delivered on the 19th January, 1995). It was said that the requirement of justice in the circumstances of this case is that the amended notice of appeal should be allowed.

11

No notice of motion was ever filed by those appellants seeking to extend their grounds of appeal. No notice of appeal was exhibited or produced in the many bundles of documents before this Court. This Court cannot therefore enter into any examination of the extension of grounds in those appeals.

12

In relation to the application to apparently revisit the stay in those cases, that is also not appropriate where the matter has been ruled on previously by the Court and no application in that regard is properly before this Court. Moreover, no additional evidence has been placed before us by way of affidavits from those appellants as to why such a stay should now be granted or indicating any new grounds upon which such a stay should be considered.

...

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3 cases
  • Pepper Finance Corporation (Ireland) DAC v Persons Unknown
    • Ireland
    • Court of Appeal (Ireland)
    • 28 July 2022
    ...respondent sought to rely on an observation in the judgment of Donnelly J's in this Court in an appeal by Mr. Beades against Pepper ( [2021] IECA 277) wherein she mentions that “[t]he orders made on 8 th October 2021 have been discharged, insofar as they refer to those named persons. Accord......
  • Shay Murtagh Ltd v Cooke
    • Ireland
    • High Court
    • 15 July 2022
    ...case of Pepper Finance Corporation (Ireland) DAC v Persons Unknown in Occupation of the property known as 21 Little Mary Street Dublin [2021] IECA 277. There, the occupants sought to rely on leases entered into between them with one Jerry Beades to avoid the injunction. In that case the occ......
  • Pepper Finance Corporation (Ireland) DAC v Persons unknown in Occupation of the Property known as 31 Richmond Avenue, Dublin 3
    • Ireland
    • High Court
    • 15 March 2022
    ...the Court of Appeal on 10th June, 2021 and, for the reasons given in an ex tempore judgment delivered by Donnelly J. on 24th June, 2021, [2021] IECA 277, dismissed with costs against the 21 The occupants' motions of 18th May, 2021 were finalised before the Court of Appeal on 13th July, 2021......

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