Permanent TSB Plc formerly Irish Life and Permanent Plc v Keane

• Jurisdiction: Ireland
• Judge: Ms. Justice Costello
• Judgment Date: 15 May 2018
• Neutral Citation: [2018] IEHC 263
• Docket Number: [2017 No. 161 S.P]
• Court: High Court
• Date: 15 May 2018

[2018] IEHC 263

THE HIGH COURT

Costello J.

[2017 No. 161 S.P]

BETWEEN

PERMANENT TSB PLC FORMERLY IRISH LIFE AND PERMANENT PLC

PLAINTIFF

AND

DONAL KEANE

AND

FIONA KEANE

DEFENDANTS

Practice & procedure – Summons – Indorsement of claim – Registration of Title Act 1964 – Cause of action

Facts: The issue in the present case related to the validity of the special indorsement of claim on the special summons issued by the plaintiff. The defendants brought a motion for the dismissal of those summons.

Ms. Justice Costello dismissed the defendants' motion. The Court granted an order for the possession of lands and premises as set out in the schedules to the special summons. The Court held that the special indorsement of claim disclosed a cause of action and the defendants had failed to show that the particulars of the claim were inadequate by cogent affidavit evidence.

JUDGMENT of Ms. Justice Costello delivered on the 15th day of May 2018

Introduction

1 The issue for decision in this case is the validity of the special indorsement of claim on the special summons issued herein on the 6th April, 2017.

2 The indorsement seeks:

'An Order pursuant to s. 62(7) of the Registration of Title Act, 1964 for possession of the lands and premises described in the First Schedule and the Second Schedule hereto to be delivered to the Plaintiff, which said properties were mortgaged/charged by the Defendants to the Plaintiff pursuant to an Indenture of Mortgage and Charge dated 22nd January, 2007 and made between the Defendants of the one part and the Plaintiff of the other part, to secure to the Plaintiff all monies due under the said Indenture of Mortgage and Charge, subject to the proviso for redemption contained therein.'

3 It is not in dispute that the properties described in the schedule were properties which were secured by a mortgage and charge dated the 22nd January, 2007 and indeed the charge is registered as a burden on each of the two folios in question, Folio 47245F County Clare and Folio 3892L County Tipperary.

4 After the two schedules identifying the property, the indorsement of the summons continues:

'Schedule of Affidavit or Affidavits intended to be used by the Plaintiff on the hearing of the Summons:

Affidavit of Jacqueline O'Brien to be sworn.

Copies of the above Affidavit and Exhibits are served herewith.'

The summons is then signed by the solicitors for the plaintiff.

5 The verifying affidavit of Jacqueline O'Brien was sworn on the 10th May, 2017 and filed in the Central Office of the High Court on the 29th May, 2017. The affidavit verifies, confirms and endorses the content of the special indorsement of claim of the special summons.

6 Ms. O'Brien's affidavit proves all of the matters necessary to enable the plaintiff obtain an order for possession in these proceedings. She establishes the loan facility agreed between the plaintiff and the defendants and the fact that the loan was to be secured by way of a first legal mortgage/charge securing the advance together with interest thereon, and all present and future liabilities of the defendants to the plaintiff over the properties set out in the special summons. She proves the acceptance of the letter of loan offer by the defendants on the 15th December, 2006 and the fact that, in performance of the loan agreement, the plaintiff advanced to the defendants the total sum of €535,000 on or around the 12th January, 2007. She avers to the fact that, by way of security for the said mortgage loan facility, the defendants executed an Indenture of Mortgage and Charge in favour of the plaintiff on or about 22nd January, 2007 and she exhibits the Mortgage and Charge and the Permanent TSB Mortgage Conditions 2002 which were expressly incorporated into the Mortgage. The Mortgage secures all moneys payable by the defendants to the plaintiff. Clause 7 .01 provides that the Total Debt, i.e. the whole of the moneys outstanding for the time being on the security of the mortgage, shall become immediately payable to Permanent TSB if the mortgagor defaults in the making of two monthly repayments. No demand is required. She exhibits the two folios which show that the defendants are the registered owners of the lands comprised in the respective folios and that the charge has been registered as a burden on the folios. She refers to the plaintiff's change of name from Irish Life and Permanent Plc to Permanent TSB Plc. She sets out a history of default in repayments and said that no repayments have been received by the plaintiff since the 10th January, 2014. On the 10th February, 2017 the plaintiff, through its solicitors, demanded that the defendants repay to it all sums then due and owing together with interest accrued thereon but the defendants failed, refused or neglected to discharge the said sum owing to the plaintiff. She states:

'19. I say that the Defendants have failed to repay the total amount due and owing on the mortgage and accordingly repayment of the principal monies secured on the charge has become due and the Plaintiff is now entitled to possession of the properties the subject matter of the proceedings.

20. I say that the letters dated the 22nd February, 2017 the Plaintiff, through its solicitor, wrote to the Defendants calling upon the Defendants to deliver vacant possession of the mortgaged premises the subject matter of these proceedings within a period of ten days and provided that in default of same the Plaintiff would issue proceedings seeking an Order for Possession in respect of the said premises.'

7 The premises are not the family home of the defendants and they do not constitute their principal private residence.

8 The defendants have not filed any replying affidavit and their counsel accepts that the plaintiff's proofs are in order if the indorsement of claim on a special summons is in compliance with the requirements of the Rules of the Superior Courts.

9 The affidavit of Mr. Ken Egan of the 19th July, 2017 establishes that he personally served the second named defendant by delivering and leaving with her a true copy of the special summons together with a true copy of the verifying affidavit of Jacqueline O'Brien sworn on the 10th May, 2017. He confirms that the second named defendant advised him that the first named defendant was not there at the time as he was away working. On the 19th July, 2017 Messrs. F.H. O'Reilly & Co. Solicitors entered an appearance on behalf of both of the defendants to the summons.

The Registration of Title Act, 1964

10 Section 62(7) of the Act of 1964 provides as follows:

'When repayment of the principal money secured by the instrument of charge has become due, the registered owner of the charge ... may apply to the court in a summary manner for possession of the land ...'

Rules of the Superior Courts

11 Order 4 rule 4 of the Rules of the Superior Courts provides that:

'The indorsement of claim on a summary summons and on a special summons shall be entitled 'SPECIAL INDORSEMENT OF CLAIM,' and shall state specifically and with all necessary particulars the relief claimed and the grounds thereof. The indorsement of claim on a summary summons or a special summons shall be in such one of the forms in Appendix B, Part III, as shall be applicable to the case, or, if none be found applicable, then such other similarly concise form as the nature of the case may require.'

12 In relation to special summonses O. 38 r. 1 provides:

'...An affidavit verifying the claim indorsed on the summons shall be filed in the Central Office and notice of such filing shall be given to the parties concerned.'

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