Pepper Finance DAC v Conway

JurisdictionIreland
JudgeMr. Justice Heslin
Judgment Date31 January 2020
Neutral Citation[2020] IEHC 35
Docket Number[2019 No. 131 CA]
CourtHigh Court
Date31 January 2020
BETWEEN
PEPPER FINANCE CORPORATION (IRELAND) DESIGNATED ACTIVITY COMPANY
PLAINTIFF
AND
RICHARD CONWAY

AND

ROSE (OTHERWISE KNOWN AS ROSALINE) CONWAY
DEFENDANTS

[2020] IEHC 35

Heslin J.

[2019 No. 131 CA]

THE HIGH COURT

Possession – Property – Plenary trial – Plaintiff seeking an order for possession of property – Whether the defendants met the threshold required for the High Court to direct a plenary trial

Facts: The Circuit Court (Judge Comerford), in a judgment delivered on 20 March 2019, decided that the plaintiff, Pepper Finance Corporation (Ireland) Designated Activity Company, was entitled to possession of the property of the defendants, Mr and Ms Conway, and refused the reliefs sought by the defendants in their motion. The relevant order issued from the Circuit Court on 20 March 2019 and the defendants appealed to the High Court against that order. The relevant pleadings comprised the Circuit Court Civil Bill for Possession, issued on 09 October 2015 and the defendants’ notice of motion, issued on 13 February 2017. This judgment dealt with both the plaintiff’s application in the aforesaid Civil Bill and the defendants’ application by way of the said motion. On foot of the Civil Bill, the plaintiff sought an order for possession of property which was described in the schedule thereto as being: “All that and those the premises known as 33 Highfield Downs, Swords, Co. Dublin, more particularly described in Folio 74990 F Co. Dublin”. The defendants’ notice of motion sought a range of reliefs, the relevant ones for the purposes of the judgment being the following: “2. An Order that the Defendants in accordance with O. 17, r. 3 submit Form 8 to the Plaintiff named herein to provide information as to the specified matters already requested of them and recorded in the affidavits of the Defendants. 3. An Order requesting permission under O. 7 of the Circuit Court Rules to issue and service a third party notice. 4. An Order that the Defendants in accordance with O. 17, r. 3 to request disclosure of further information from the Plaintiff now relevant in the context of the Plaintiff’s new claim on a late filed affidavit to be “lender of record” based on a transaction they claim to have initiated which is disputed by the Defendants. 5. An Order that the case is dealt with in plenary proceedings”.

Held by Heslin J that, having noted that Superior Court authorities made it clear that the scope of the discretion conferred on the court in the context of a Registration of Title Act 1964 s. 62(7) application for possession was very limited, in view of the overwhelming evidence in favour of the plaintiff in these proceedings, he was entirely satisfied that it was proper to grant possession of the property in favour of the plaintiff on foot of the proceedings which had been brought by the plaintiff in a summary manner as provided for in s. 62(7). Heslin J refused all of the reliefs sought by the defendants in their motion dated 13 February 2017. Heslin J was satisfied that the defendants had failed to meet the threshold required for the court to direct a plenary trial because of his findings of fact and the evidence in support of the plaintiff’s case. In relation to the legal issues which arose in this case Heslin J was also entirely satisfied that they were capable of being resolved without any need for a plenary hearing. Insofar as the reliefs sought at para. 2 of the notice of motion were concerned, Heslin J was satisfied that the defendants had sufficient particulars of the plaintiff’s claim. Furthermore, despite the fact that the defendants’ sought relief pursuant to O. 17, r. 3 of the Circuit Court Rules, Heslin J was satisfied that the substance of the request was not truly to seek particulars in respect of the plaintiff’s claim; similar comments applied in relation to the reliefs sought at para. 4 of the notice of motion. Heslin J held that these were not requests for particulars, but, rather, in the nature of interrogatories and an attempt by the defendants to have the plaintiff provide information on a wide range of issues, none of which could properly be said to be reasonably necessary in the context of understanding the plaintiff’s claim or preparing a defence to same. Heslin J was satisfied that the reliefs sought at para. 3 of the notice of motion were entirely inappropriate; nowhere in any of the ten affidavits sworn on behalf of the defendants was any claim against a third party made out. Heslin J held that it was neither necessary nor appropriate that any third party be joined in order for the court to determine the issues properly before it.

Heslin J held that the plaintiff was entitled to an order for possession of the mortgaged property.

Appeal dismissed.

JUDGMENT of Mr. Justice Heslin delivered on the 31st day of January 2020,
Background
1

This case comes before the court by way of a notice of appeal dated 27 March 2019, pursuant to which the Defendants appealed against a judgment and order of the Circuit Court. The relevant pleadings comprise the Circuit Court Civil Bill for Possession, issued on 09 October 2015 and the Defendants' notice of motion, issued on 13 February 2017. The Defendants' motion was grounded on the affidavit sworn by the first named Defendant on 13 February 2017. A number of further affidavits were sworn during the course of the Circuit Court proceedings which were heard before His Honour Judge Comerford on 24 November 2017, 06 July 2018 and 09 July 2018, including an affidavit dated 26 June 2018 which was sworn by the first named Defendant seven months after day one of the Circuit Court hearing, but shortly before day two and three of same. In a judgment delivered on 20 March 2019, Judge Comerford decided that the Plaintiff was entitled to possession of the Defendants' property and refused the reliefs sought by the Defendants in their motion. The relevant order issued from the Circuit Court on 20 March 2019 and the Defendants appeal against this order. The Defendants represented themselves at the hearing, which proceeded by way of an entire rehearing of the matter, de novo, lasting 3 days.

2

On the morning of day 3 of the hearing, the Defendants made an application for an adjournment which, for reasons detailed in an ex-tempore judgment, I refused to grant. Shortly before 12 noon on day 3 of the hearing, the Defendants made an application to admit material which was not before the Circuit Court, specifically a report concerning “Windmill Funding DAC”, dated 31 December 2017, which the Defendants regarded as evidence upon which they proposed to rely and, for reasons detailed in a second extempore judgment, I refused that application. This judgment deals with both the Plaintiff's application in the aforesaid Civil Bill and the Defendants' application by way of the said motion.

The property sought by the Plaintiff
3

On foot of the Civil Bill, the Plaintiff seeks an order for possession of property which is described in the schedule thereto as being: -

“All that and those the premises known as 33 Highfield Downs, Swords, Co. Dublin, more particularly described in Folio 74990 F Co. Dublin” (hereinafter “the property”).

The relief sought by the Defendants
4

The Defendants' notice of motion seeks a range of reliefs, the relevant ones for the purposes of this judgment being the following: -

“2. An Order that the Defendants in accordance with O. 17, r. 3 submit Form 8 to the Plaintiff named herein to provide information as to the specified matters already requested of them and recorded in the affidavits of the Defendants.

3. An Order requesting permission under O. 7 of the Circuit Court Rules to issue and service a third party notice.

4. An Order that the Defendants in accordance with O. 17, r. 3 to request disclosure of further information from the Plaintiff now relevant in the context of the Plaintiff's new claim on a late filed affidavit to be “lender of record” based on a transaction they claim to have initiated which is disputed by the Defendants.

5. An Order that the case is dealt with in plenary proceedings”.

The Affidavits
5

During the hearing the following affidavits were opened to the court in their entirety:-

i. The affidavit of Caroline Loftus, sworn 05 October 2015.

ii. The affidavit of Richard Conway sworn 12 April 2016.

iii. The affidavit of Richard Conway sworn 11 May 2016.

iv. The affidavit of Caroline Loftus sworn 10 June 2016.

v. The affidavit of Richard Conway sworn 07 November 2016.

vi. The affidavit of Caroline Loftus sworn 02 December 2016.

vii. The affidavit of Richard Conway sworn 08 December 2016.

viii. The affidavit of Richard Conway sworn 12 December 2016.

ix. The affidavit of Caroline Loftus sworn 13 December 2016.

x. The affidavit of Richard Conway sworn 13 February 2017.

xi. The affidavit of Richard Conway sworn 19 April 2017.

xii. The affidavit of Caroline Loftus sworn 19 April 2017.

xiii. The affidavit of Richard Conway sworn 8 May 2017.

xiv. The affidavit of Grainne Naughton sworn 18 May 2017

xv. The affidavit of Richard Conway sworn 22 June 2017.

xvi. The affidavit of Richard Conway sworn 26 June 2018.

6

In reaching the findings detailed in this judgment, I have carefully considered the contents of all the foregoing affidavits sworn in these proceedings, together with the exhibits thereto. I have also carefully considered the contents of the submissions made, both oral and written, by the parties to these proceedings, as well as the authorities relied upon by the parties. In circumstances where this case proceeded by way of an entire rehearing, I did not consider it necessary or appropriate to consider the contents of the Defendants' legal submission, dated 9th December, 2019 entitled “Analysis of Circuit Court Findings”. I did, however, consider the contents of all the following written submissions made by the Defendants:

1. Legal submission entitled “Denial of Debt”, dated 9th...

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2 cases
  • Pepper Finance Corporation Ireland DAC v Patrick Farrelly and Kathleen Murtagh
    • Ireland
    • High Court
    • 26 April 2022
    ...At para. 43. of my judgment of 31 January 2020 in Pepper Finance Corporation (Ireland) Designated Activity Company v Conway & Anor. [2020] IEHC 35, I made reference to the decision of Ní Raifeartaigh Legal / beneficial ownership 41 In her decision, Ní Raifeartaigh J. commented, inter alia, ......
  • McKenna v Pepper Finance Corporation (Ireland) DAC and Another
    • Ireland
    • High Court
    • 9 October 2023
    ...the Registration of Title Act, 1964” (see Permanent TSB Plc v. Burns [2020] IEHC 24; Pepper Finance Corporation (Ireland) DAC v. Conway [2020] IEHC 35.” 74 . I am satisfied therefore that the plaintiff has not raised a serious issue to be tried on this The fourth issue – the novation of the......

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