Permanent TSB Plc formerly Irish Life and Permanent Plc and Another v Donohoe

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Rory Mulcahy
• Judgment Date: 29 July 2024
• Neutral Citation: [2024] IEHC 467
• Docket Number: Record No: 2015/83 SP

Between:

Permanent TSB Plc Formerly Irish Life and Permanent Plc and Start Mortgages Designated Activity Company

Plaintiffs

and

Brian Donohoe

Defendant

[2024] IEHC 467

Record No: 2015/83 SP

THE HIGH COURT

Possession of property – Registration of Title Act 1964 s. 62(7) – Plenary hearing – Second plaintiff seeking possession of two properties pursuant to s. 62(7) of the Registration of Title Act 1964 – Whether the proceedings should be adjourned to plenary hearing

Facts: The second plaintiff, Start Mortgages DAC, applied to the High Court for possession of two properties, one in Clondalkin, the other in Galway, pursuant to s. 62(7) of the Registration of Title Act 1964, as amended. It was not disputed that, on foot of a loan approval dated 30 April 2007, the first plaintiff, Permanent TSB PLC, advanced the defendant, Mr Donohoe, a loan in the sum of €543,450. The loan was secured by way of a mortgage dated 8 May 2007 in favour of the first plaintiff. The mortgage was registered as a charge against the properties on 5 June 2008. It was also accepted that the defendant had not made any payments on the secured loan since July 2010. Notwithstanding that the defendant did not dispute that he had the benefit of the loan from the first plaintiff, that he granted security over the properties, and that he had not made any payments on the loan for some fourteen years as at the date of this judgment, the defendant contended variously that the claim should be dismissed, that certain questions should be referred to the Supreme Court and/or the Court of Justice of the European Union (CJEU), or that the proceedings should be adjourned to plenary hearing. He identified a multiplicity of issues in defence of the proceedings.

Held by Mulcahy J that the question for determination was whether the defendant had identified any defence to the plaintiffs’ claim such that it was clear that the claim would fail, and therefore should be dismissed, or had established that the interests of justice demand that it be dismissed, or whether he had identified an issue the resolution of which required a plenary hearing. Mulcahy J concluded that the defendant had identified a limited number of factual disputes which, if resolved in his favour, were at least capable of giving rise to a defence to the plaintiffs’ claim and that, therefore, the proceedings should be adjourned to plenary hearing for a resolution of those issues. In addition, Mulcahy J found that there were some matters which were of sufficient complexity that, having regard to the fact that he had, in any event, concluded that a plenary hearing was appropriate, would best be addressed in the context of a plenary hearing.

Mulcahy J held that he would make an order adjourning the proceedings to plenary hearing in accordance with Order 38, rule 9 of the Rules of the Superior Courts. Mulcahy J held that he would list the proceedings on 9 October 2024 at 10.30 am for the purpose of giving directions for the further hearing of the matter. Mulcahy J held that he would invite the parties to liaise in advance of that date for the purpose of agreeing, insofar as possible, such directions.

Proceedings adjourned.

JUDGMENT of Mr Justice Rory Mulcahy delivered on 29 July 2024

Introduction

1 . This judgment concerns the second plaintiff's application for possession of two properties, one in Clondalkin, the other in Galway (“ the Properties”), pursuant to section 62(7) of the Registration of Title Act 1964, as amended.

2 . It is not disputed that, on foot of a loan approval dated 30 April 2007, the first plaintiff advanced the defendant a loan in the sum of €543,450. The loan was secured by way of a mortgage dated 8 May 2007 in favour of the first plaintiff. The mortgage was registered as a charge against the Properties on 5 June 2008.

3 . It is also accepted that the defendant has not made any payments on the secured loan since July 2010.

4 . Notwithstanding that the defendant does not dispute that he had the benefit of the loan from the first plaintiff, that he granted security over the Properties, and that he has not made any payments on the loan for some fourteen years as at the date of this judgment, the defendant contends variously that the claim should be dismissed, that certain questions should be referred to the Supreme Court and/or the Court of Justice of the European Union (CJEU), or that the proceedings should be adjourned to plenary hearing. He has identified a multiplicity of issues in defence of these proceedings.

5 . It should be noted that the issues he now relies on differ from those he advanced in the very many extensive affidavits he has filed in response to the plaintiffs' claim. As acknowledged by him in his opening oral submissions, he had presented his defence on the basis of “ at times misinformed opinions”. His tenth, and subsequent, affidavits address the matters which are now the subject of his defence of the plaintiffs' claim. This judgment, therefore, as the defendant invited the court to do, focuses on the issues raised in those and subsequent affidavits and in his extensive written and oral submissions. The defendant continues to rely on certain factual averments and exhibits from his earlier affidavits.

6 . The first plaintiff issued these proceedings by way of special summons in April 2015. The proceedings have been the subject of two prior judgments of the High Court, one of McDermott J ( [2017] IEHC 143), the other of MacDonald J ( [2018] IEHC 355).

7 . The defendant appealed against the judgment and order of MacDonald J dated 22 June 2018. While that appeal was pending, on 1 February 2019, the first plaintiff sold its interest in the defendant's loan facility and mortgage to the second plaintiff. The Court of Appeal made an order adding the second plaintiff as co-plaintiff in the proceedings on 1 November 2019. The appeal was dismissed on 23 November 2020. An application for leave to appeal to the Supreme Court was subsequently withdrawn by the defendant.

8 . The second plaintiff was registered as owner of the charge over the Properties on 27 March 2019. The second plaintiff is, therefore, the only party with a material interest in the proceedings, but, for convenience, I will simply refer to the plaintiffs in this judgment save where it is necessary to distinguish between the first and second plaintiffs.

9 . In addition to the plaintiffs' application for an order for possession, the defendant has two motions before the court, one dated 3 May 2018, the other 8 March 2024, in which he seeks to have the proceedings struck out on grounds which broadly mirror those he advances by way of defence and which, therefore, do not require to be separately addressed.

The plaintiffs' case

10 . The plaintiffs' case is straightforward and is advanced in reliance on section 62(7) of the Registration of Title Act 1964 (“ the 1964 Act”). Section 62(7) has been repealed. However, it remains applicable to mortgages created before 1 December 2009 by virtue of section 1 of the Land and Conveyancing Law Reform Act 2013. Section 62(7) of the 1964 Act provides:

(7) When repayment of the principal money secured by the instrument of charge has become due, the registered owner of the charge or his personal representative may apply to the court in a summary manner for possession of the land or any part of the land, and on the application the court may, if it so thinks proper, order possession of the land or the said part thereof to be delivered to the applicant, and the applicant, upon obtaining possession of the land or the said part thereof, shall be deemed to be a mortgagee in possession.

11 . In Bank of Ireland v Cody [2021] IESC 26, the Supreme Court (Baker J) explained the limited proofs required to obtain an order for possession pursuant to section 62(7):

“ 49. The owner of a charge who seeks to obtain possession pursuant to s. 62(7) has to prove two facts:

(a) That the plaintiff is the owner of the charge;

(b) That the right to seek possession has arisen and is exercisable on the facts.”

50. The summary process is facilitated by the conclusiveness of the Register as proof that the plaintiff is the registered owner of the charge is a matter of the production of the folio, and, as the Register is by reason of s. 31 of the Act of 1964 conclusive of ownership, sufficient evidence is shown by that means: see the discussion in the Court of Appeal in Tanager DAC v. Kane [2018] IECA 352. The judgment of the Court of Appeal inter alia held that the correctness of the Register cannot be challenged by way of defence in summary possession proceedings, and that a court hearing an application for possession pursuant to s. 62(7) of the Act of 1964 is entitled to grant an order at the suit of the registered owner of the charge, or his or her personal representative, provided it is satisfied that the plaintiff is the registered owner of the charge and the right to possession has arisen and become exercisable.”

12 . The plaintiffs assert that they have established the proofs necessary in order to obtain the order for possession. It is not disputed that the second plaintiff is the registered owner of the charge over the Properties, as established by production of the folio, the conclusiveness of which the court is required to accept. And it asserts that the right to possession has arisen and is exercisable on the facts.

13 . The terms of the loan to the defendant are set out in a letter of approval dated 30 April 2007. As appears therefrom, the term of the loan was 25 years with an interest rate of 4.75%. The defendant, however, was only required to repay interest on the loan, at least for the first five years of the loan period. Clause 4 of the Special Conditions provides:

Permanent tsb will accept monthly repayments, as set out in the letter of approval, representing repayment of interest only...