Phoenix Construction Consulting Ltd v Persons Unknown in Occupation of 11A North Frederick Street

• Jurisdiction: Ireland
• Judge: Ms. Justice Eileen Roberts
• Judgment Date: 12 December 2022
• Neutral Citation: [2022] IEHC 706
• Court: High Court
• Docket Number: 2022 No. 546P

Between

Phoenix Construction Consulting Limited

Plaintiff

and

Persons Unknown in Occupation of 11A North Frederick Street, Dublin 1 and Gerry Ward

Defendants

[2022] IEHC 706

2022 No. 546P

THE HIGH COURT

Interlocutory injunction – Judgment in default of appearance – Discovery – Plaintiff seeking interlocutory injunctions – Whether the plaintiff’s claim should be struck out

Facts: The High Court heard four separate motions together on 16 November 2022: (1) the motion of the plaintiff, Phoenix Construction Consulting Ltd, dated 16 February 2022 (the interlocutory injunction motion) seeking the following general reliefs against the defendants, persons unknown in occupation of 11A North Frederick Street, Dublin 1 (the Property) and Mr Ward – (a) an interlocutory injunction restraining the defendants and all persons having notice of any order from trespassing at the Property and related reliefs for the delivery of keys and alarm codes, (b) an interlocutory injunction restraining any threats to the plaintiff, its servants or agents and restraining any obstruction by the defendants to the taking of possession of the Property by the plaintiff, (c) summary judgment on the plaintiff’s claim as against the persons unknown in occupation of the premises, and (d) an order directing the second defendant to disclose on affidavit all rents paid to him by any person residing at the Property since 30 June 2020; (2) the second defendant’s motion dated 16 March 2022 (the strike out motion) seeking to strike out the plaintiff’s claim as being vexatious, frivolous, bound to fail and an abuse of process – this motion also sought, in the alternative, the strike out of those portions of the plaintiff’s grounding affidavits that referred to what were alleged to be unfounded and groundless allegations of criminal behaviour by the second defendant; (3) the plaintiff’s motion dated 12 October 2022 (the default judgment motion) for judgment in default of appearance against the persons unknown in occupation of the Property; and (4) the second defendant’s motion dated 3 November 2022 (the discovery motion) seeking discovery of documents from the plaintiff.

Held by Roberts J that, in relation to the interlocutory injunction motion, she would make an order granting injunctive relief to the plaintiff against the defendants pending the trial of the action in the terms of paragraphs 4, 5, 6 and 8 of the plaintiff’s notice of motion. She would make an order in terms of paragraphs 2 and 3 as against the second defendant. She would make an order in terms of paragraphs 2 and 3 as against the first defendants but limited until further order to the common areas of the Property. She would refuse the order for summary judgment sought against the first defendants in the terms of paragraph 9. She would direct that the first defendants should, within four weeks of the date of this judgment provide full details of their occupancy to the plaintiff. She would defer making any decision of the relief sought at paragraph 1 against the first defendants until particulars of their occupancy had been provided as directed. She would make an order against the second defendant in the terms of paragraph 7 requiring him to disclose on affidavit rents paid to him by any persons residing at the Property from 2 June 2020 to date; the said affidavit should identify the payer and the amounts paid and date and period of payment in each case. She would hear the second defendant in relation to the time period required to complete this affidavit. She would make no order in respect of paragraph 10 as that issue was not advanced at the hearing.

Roberts J held that, in relation to the strike out motion, she would refuse the reliefs sought at paragraphs 1 and 2. In relation to the default judgment motion, she would direct that the first defendants be given an extension of time of 28 days from the date of this judgment to enter and file an appearance/ appearances failing which the plaintiff will have liberty to enter judgment (without further order) against any defendant who fails to do so for the relief claimed in the statement of claim against them. In relation to the discovery motion, she would make an order for discovery and hear the parties in relation to the time period required and the identity of the plaintiff’s deponent.

Interlocutory injunction motion granted in part. Strike out motion refused. Default judgment motion granted in part. Discovery motion granted.

Judgment of Ms. Justice Eileen Roberts delivered on 12 December 2022

Introduction

1 . This judgment relates to four separate motions heard by this court together on 16 November 2022 in the above proceedings. The motions are as follows, identified in the order in which they issued:

• (1) the plaintiff's motion dated 16 February 2022 (the ‘ interlocutory injunction motion’) seeking the following general reliefs against the defendants:

• (a) an interlocutory injunction restraining the defendants and all persons having notice of any Order from trespassing at 11A North Frederick Street, Dublin 1 (which I refer to hereafter as the ‘ Property’) and related reliefs for the delivery of keys and alarm codes;

  • (b) an interlocutory injunction restraining any threats to the plaintiff, its servants or agents and restraining any obstruction by the defendants to the taking of possession of the Property by the plaintiff;

  • (c) summary judgment on the plaintiff's claim as against the persons unknown in occupation of the premises; and

  • (d) an order directing the second named defendant to disclose on affidavit all rents paid to him by any person residing at the Property since 30 June 2020.

• (2) the second named defendant's motion dated 16 March 2022 (the ‘ strike out motion’) seeking to strike out the plaintiff's claim as being vexatious, frivolous, bound to fail and an abuse of process. This motion also seeks, in the alternative, the strike out of those portions of the plaintiff's grounding affidavits that refer to what are alleged to be unfounded and groundless allegations of criminal behaviour by the second named defendant.

• (3) the plaintiff's motion dated 12 October 2022 (the ‘ default judgment motion’) for judgment in default of appearance against the persons unknown in occupation of the Property; and

• (4) the second named defendant's motion dated 3 November 2022 (the ‘ discovery motion’) seeking discovery of documents from the plaintiff.

Background to these proceedings

2 . The plaintiff was registered as full owner of the Property in folio 177876L Co Dublin on 4 March 2021. The Property comprises a ground-floor commercial unit which is in the plaintiff's possession and no orders are sought in these proceedings in relation to that unit. The remainder of the Property comprises four apartments, numbers 1 to 4 and it is this residential part of the Property that is the subject of these proceedings.

3 . The first named defendants, namely persons unknown in occupation of 11A North Frederick Street, Dublin 1, are believed to occupy some or all of apartments numbered 1 to 4. The plaintiff is unaware of the terms on which the units are occupied but says it has not consented to any occupation by these parties. The second named defendant does not reside at the Property.

4 . The second named defendant, together with Ruairi O'Ceallaigh and Cormac O'Ceallaigh (who are not involved in these proceedings) purchased the Property on 12 November 2004 from a Mr Patrick McCreevey. That purchase was financed by mortgage from IIB Bank and the purchasers entered into a deed of mortgage with IIB Bank on 12 November 2004. The loan was secured on the Property by way of charge, and the mortgage documentation confirmed the bank's entitlement to appoint a receiver (with an express contractual power of sale) once the security became enforceable.

5 . IIB Bank appointed Mr Ken Fennell as receiver to the bank's interest in the Property by deed of appointment dated 14 August 2014. IIB Bank (which on 24 October 2008 changed its name to KBC Bank Ireland Plc) was permitted to assign its interest in the mortgage without borrower consent (clause 20.2 of the Mortgage Deed). It assigned its interest to Beltany Property Finance DAC on 30 November 2018 and entered into a deed of novation of receiver on that same date.

6 . The plaintiff purchased the Property by contract for sale dated 28 February 2020 which it entered into with Mr Ken Fennell as receiver of the assets of the previous registered owners, being Ruairi O'Ceallaigh, Cormac O'Ceallaigh and the second named defendant. That transaction completed by indenture dated 2 June 2020 entered into by the plaintiff with Beltany Property Finance DAC, selling as mortgagee in possession.

7 . The plaintiff states that it was unable to gain entry to the Property following the purchase. While it secured access to the commercial ground floor area it has been unable to gain access to the apartments overhead which continue to be occupied by persons unknown. The plaintiff alleges that the second named defendant changed the locks on the residential part of the Property on 24 June 2020 after the plaintiff had purchased the Property. The plaintiff claims that it has been prevented from repairing the residential part of the Property or gaining access to it and that it has been the victim of threats, intimidation and harassment. The plaintiff says it believes that the persons in occupation are paying rent to the second named defendant.

8 . The present proceedings issued on 11 February 2022. Orders are sought by the plaintiff for a declaration that the first named defendants have no legal title or lawful basis to occupy the Property. Injunctions are sought restraining the defendants from trespassing onto the Property. A declaration is sought that any monies received by the second named defendant from the occupiers of the Property since the plaintiff's purchase of...