Promontoria (Pluto) Ltd v Nolan

• Jurisdiction: Ireland
• Judge: Ms Justice Bolger
• Judgment Date: 24 April 2023
• Neutral Citation: [2023] IEHC 200
• Docket Number: [Record No. 2022/242 CA]
• Court: High Court

Between

Promontoria (Pluto) Limited

Plaintiff

and

Patience Nolan

Defendant

[2023] IEHC 200

[Record No. 2022/242 CA]

THE HIGH COURT

Possession of property – Civil Bill – Amendment – Plaintiff seeking to amend a Civil Bill for possession of property – Whether there was a prejudice to the defendant in permitting the amendments sought

Facts: The plaintiff, Promontoria (Pluto) Ltd, appealed to the High Court from a decision of the Circuit Court refusing the plaintiff’s application, pursuant to Order 65 Rule 1 of the Circuit Court Rules, to amend a Civil Bill for possession of property comprised in a folio of County Wexford, to include unregistered land described in an earlier Deed of Conveyance of 15 September 1998. The Civil Bill for Possession issued on 21 October 2019 described the property as “a plot of ground being part of the Townland of TULLYCANNA and Barony of BARGY containing 10.2410 Hectares shown as Plan(s) 15 edged RED on the Registry Map (OS MAP Ref(s) 41/14) more particularly contained and described in Folio 21271 of the Register of Ownership of Freehold Land, County Wexford”. The plaintiff stated that this description should be amended to reflect how the property was described in the Deed of Transfer and Conveyance dated 15 September 1998: "ALL THAT part of the lands of Tullycanna (otherwise Tullecanna) now called Springwood situate in the Barony of Bargy and County of Wexford being more particularly described on the map annexed hereto and outlined in red". The plaintiff contended that failure to rectify this omission would prejudice the plaintiff as it would not be able to realise the full security given by the defendant in respect of the mortgage.

Held by Bolger J that the proposed amendments did not relate to the same facts and did not have the same legal consequences as the matters pleaded in the Civil Bill for Possession. Bolger J found that there had been no adequate explanation why the amendments were not pleaded in the original Civil Bill. Bolger J held that there was a prejudice to the defendant, Ms Nolan, in permitting the amendments sought as they allowed the plaintiff to make a new case, i.e. possession of the defendant’s unregistered lands and her family home, that was not identified in the proceedings and in relation to which there was insufficient evidence that the mortgage the defendant took out with the plaintiff’s predecessor included her unregistered lands and her home. Bolger J found that the amendments sought by the plaintiff attempted to expand the case the plaintiff sought to make in its Civil Bill for Possession rather than simply ensuring that the matters put at issue by that Civil Bill were properly and fully before the court.

Bolger J refused the plaintiff’s application to amend and affirmed the decision of the Circuit Court. Bolger J’s indicative view on costs was that costs in accordance with s. 169 of the Legal Services Regulation Act 2015, both above and below, should follow the cause and that the defendant was entitled to her costs.

Application refused.

Counsel for the plaintiff, Fionola Martin BL

Counsel for the defendant, Helen McCarthy BL

JUDGMENT of Ms Justice Bolger delivered on the 24 ^th day of April 2023

1 . This is an appeal from a decision of the Circuit Court refusing the plaintiff's application, pursuant to Order 65 Rule 1 of the Circuit Court Rules, to amend a Civil Bill for possession of property comprised in a folio of County Wexford, to include unregistered land described in an earlier Deed of Conveyance of 15 September 1998. For the reasons outlined below I am refusing this application and upholding the decision of the Circuit Court.

2 . The Civil Bill for Possession issued on 21 October 2019 described the property as “a plot of ground being part of the Townland of TULLYCANNA and Barony of BARGY containing 10.2410 Hectares shown as Plan(s) 15 edged RED on the Registry Map (OS MAP Ref(s) 41/14) more particularly contained and described in Folio 21271 of the Register of Ownership of Freehold Land, County Wexford”. The plaintiff states that this description should be amended to reflect how the property was described in the Deed of Transfer and Conveyance dated 15 September 1998; “ALL THAT part of the lands of Tullycanna (otherwise Tullecanna) now called Springwood situate in the Barony of Bargy and County of Wexford being more particularly described on the map annexed hereto and outlined in red”. The plaintiff contends that failure to rectify this omission would prejudice the plaintiff as it would not be able to realise the full security given by the defendant in respect of the mortgage.

Background

3 . By deed and transfer of conveyance dated 15 September 1998, the defendant purchased some 53 acres of registered and unregistered land which included a house on the unregistered land. The unregistered land was described in the schedule “all that part of the lands of Tullycanna (otherwise Tullecanna) now called Springwood situate in the Barony of Bargy and County of Wexford being more particularly described on the map annexed hereto and outlined in red”. The registered land was described as “all that the lands contingent folio 21271 of the Register of County Wexford”. In September 2000, the plaintiff's predecessor offered the defendant a mortgage. Facility letters of 6 September 2000 and 12 September 2000 described the property as “Springwood, Ballymitty, County Wexford”. That is the address of both the unregistered and the registered land.

4 . The mortgage deed was executed on 26 September 2000 over the property described in the schedule as “All that and those the hereditaments and premises known as “Springwood”, Ballymitty in the County of Wexford part of which property is comprised in Folio 21271 County Wexford”. A Mr. John Nolan was a co-mortgagee with the defendant. He and the defendant later married in July 2001. Mr. Nolan has passed away since that time.

The pleadings

5 . The defendant fell into arrears in her mortgage repayments and by Civil Bill for Possession issued on 21 October 2019, the plaintiff sought possession of “the mortgaged property” which is described in the schedule to the Civil Bill as “a plot of ground being part of the Townland of TULLYCANNA and Barony of BARGY containing 10.2410 Hectares shown as Plan(s) 15 edged RED on the Registry Map (OS MAP Ref(s) 41/14) more particularly contained and described in Folio 21271 of the Register of Ownership of Freehold Land, County Wexford”. The Civil Bill pleads, at paragraph 10, that the mortgage deed of 26 September 2000 was over “the mortgaged property” and at paragraph 14, that the plaintiff has been registered on the Folio 21271 as the owner of the charge since 3 November 2016, i.e., over the registered lands.

6 . The description of the property in the schedule refers to an area of 10.241 hectares, which converts to approximately 25 acres. This is significantly less than the totality of the registered and unregistered land which comes to approximately 53 acres.

7 . The affidavit grounding the Civil Bill for Possession refers, at paragraph 4, to the “property the subject of these proceedings which comprise an unregistered land and registered land situate at “Springwood”, Ballymitty, County Wexford (as described in the Schedule to the Civil Bill for Possession) (the “Property”)”. The plaintiff's deponent refers to the Deed of Transfer of 15 September 1998. At paragraph 11, the deponent states that he was “advised that no consent to the giving of security was required for the purpose of section 3 of the Family Home Protection Act 1976 or section 28 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010” and, further, at paragraph 22, they state they are unaware if the property contains a family home within the meaning of s. 2 of the Family Home Protection Act 1976.

8 . Those averments were despite the fact that the defendant and Mr. Nolan, who were married in July 2001, may have resided in the house on the property thereby potentially rendering it a family home within the meaning of the Family Home Protection Act 1976. These averments seems to support the defendant's claim that the mortgage was never intended...