Permanent TSB Plc (Formerly Irish Life and Permanent Plc) v Rabbitt

• Jurisdiction: Ireland
• Judge: Mr. Justice Meenan
• Judgment Date: 25 January 2019
• Neutral Citation: [2019] IEHC 100
• Docket Number: [2017 No. 82 C.A.]
• Court: High Court
• Date: 25 January 2019

[2019] IEHC 100

THE HIGH COURT

Meenan J.

[2017 No. 82 C.A.]

BETWEEN

PERMANENT TSB PLC (FORMERLY IRISH LIFE AND PERMANENT PLC)

PLAINTIFF

AND

LIAM RABBITT

DEFENDANT

Loan facility – Possession – Repayment – Defendant seeking to appeal against an order for possession – Whether the defendant’s defences were stateable

Facts: The plaintiff, Permanent TSB plc, in April 2005, agreed to make a loan facility available to the defendant, Mr Rabbitt. The term of the loan facility was to be for a period of 30 years and repayment was to be made by way of monthly instalments of both the principle and interest. It was further provided that in the event that the defendant defaulted in the making of two monthly repayments the plaintiff would be entitled to terminate the loan and demand repayment of all monies then outstanding. The sum of €350,000 was advanced by the plaintiff to the defendant. By way of security for the said loan the defendant executed a mortgage in favour of the plaintiff over No. 3 Moeran Road, Walkinstown, Dublin 12 on 2 June 2005. On or about 13 May 2008 and various dates thereafter the defendant failed to make repayments of the principle and/or interest. Since 4 October 2012, the defendant had made no repayment whatsoever on the loan. Proceedings issued in the Circuit Court, by way of a Civil Bill for possession, on 9 January 2015. The matter appeared before the County Registrar on some six occasions between 2015 and 2016 before being transferred to the Judge’s list in the Circuit Court. On 18 January 2017 the Circuit Court granted the plaintiff an order for possession, subject to a stay for some three months. The defendant wished to appeal the order of the Circuit Court but was out of time to do so and consequently brought a motion before the Master of the High Court in May 2017 to extend time within which to lodge an appeal. The plaintiff ultimately consented to an extension of time to appeal the order of the Circuit Court.

Held by the High Court (Meenan J) that the defendant’s defences fell well short of being stateable. Meenan J noted that there is a reluctance on the part of the courts to make an order for possession where the borrower has failed to make repayments which he or she has agreed to do. Meenan J also bore in mind that in many cases the defaulting borrower would never have owned the property sought be recovered were if not for the monies borrowed and not repaid. The Court took into consideration the following factors: (i) the defendant had made no repayments whatsoever since October 2012, in excess of six years ago; (ii) the defendant had failed to engage with the plaintiff in any meaningful way in the past six years; (iii) over a period of some four years the defendant had engaged in and persisted with putting forward defences which have no merit; (iv) while the defendant had engaged in pointless litigation, the amount owed in arrears had risen from some €130,000 to a figure in excess of €185,000; (v) the defendant sought to rely upon a letter from a firm of accountants which contained information that was incorrect and misleading.

Meenan J held that by reason of the foregoing he would affirm the order of the Circuit Court.

Order affirmed.

JUDGMENT of Mr. Justice Meenan delivered on the 25th day of January, 2019

Introduction

1 These proceedings issued in the Circuit Court, by way of a Civil Bill for possession, on 9 January 2015. The matter appeared before the County Registrar on some six occasions between 2015 – 2016 before being transferred to the Judge's list in the Circuit Court. On 18 January 2017 the Circuit Court granted the plaintiff an order for possession, subject to a stay for some three months. Up to that point some fifteen affidavits (not including affidavits of service) had been filed in the proceedings.

2 The defendant wished to appeal the order of the Circuit Court but was out of time to do so and consequently brought a motion before the Master of the High Court in May 2017 to extend time within which to lodge an appeal. The plaintiff ultimately consented to an extension of time to appeal the order of the Circuit Court.

3 The appeal to the High Court prompted an exchange of some five further affidavits (again excluding the affidavits of service). In addition, there was a High Court motion on foot of which the plaintiff provided to the defendant the originals of certain documents. There were also a number of applications of a procedural nature before the High Court.

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