Promontoria Scariff DAC v McDonagh
| Jurisdiction | Ireland |
| Judge | Mr. Justice Conleth Bradley |
| Judgment Date | 12 March 2024 |
| Neutral Citation | [2024] IEHC 176 |
| Court | High Court |
| Docket Number | Record No. 2023/11CA |
[2024] IEHC 176
Record No. 2023/11CA
THE HIGH COURT
JUDGMENT of Mr. Justice Conleth Bradley delivered on the 12 th day of March 2024
This appeal relates to a Civil Bill for Possession where the Plaintiff (Promontoria Scariff DAC) seeks possession of a principal private residence, Dromin House, which is located at Drummin East, Delgany, County Wicklow (“the property”) on foot of a legal mortgage pursuant to section 3 of the Land and Conveyancing Law Reform Act 2013 (“the 2013 Act”).
An order for possession of the property had been made by the Circuit Court (His Honour Judge Quinn) sitting in Bray, County Wicklow on 18 th January 2023, with a stay on the order of possession for a period of 18 months from the date of service of that order (which expires on 7 th September 2024). As this is an appeal from the decision of the Circuit Court, the application is a de novo hearing and the court's jurisdiction is governed by the statutory provisions and Rules of Court of the Circuit Court.
In this application I heard from Mr. Brian McDonagh (“the Defendant”) and Ms. Yeoksee Ooi, who is the partner of the Defendant.
Ross Aylward BL represented Promontoria Scariff DAC (“Promontoria”).
The application was conducted by way of a hybrid hearing. Mr. Aylward BL and Ms. Ooi were physically present in court and Mr. McDonagh was present throughout the hearing remotely.
The property is in the sole name of the Defendant. Ms. Ooi resides in, and is an occupant of the property, but does not have a legal interest or title in the property. Mr. McDonagh and Ms. Ooi have three children together. As Ms. Ooi resides in the property, and is therefore an occupant, she was served with the possession proceedings in accordance with the Order 5B of the Circuit Court Rules (Actions for Possession and Well-charging Reliefs) 1 and Practice Direction CC17 (Proceedings for possession or sale on foot of a mortgage) of the Circuit Court.
A Notice of Appeal was filed in the High Court on 27 th January 2023 with a first return date of 20 th February 2023. The matter was adjourned to 19 th June 2023 when the hearing date of 15 th February 2024 was fixed. On the Friday, prior to this matter coming on for hearing, this court (Barr J.) refused the Defendant's application to adduce new evidence or to inspect documents.
On Tuesday 13 th February 2024, prior to this application being heard before me on Thursday 15 th February 2024, Ms. Ooi issued a new set of proceedings, comprising inter alia a constitutional challenge to the Family Home Protection Act 1976 (“the 1976 Act”) against Ireland, the Attorney General, Brian McDonagh and Promontoria Scariff DAC and a return date of 11 th March 2024 was given for a Notice of Motion.
On the morning of the hearing of this application, Ms. Ooi made an application to me seeking to have this application – Promontoria's possession proceedings – adjourned. In making that application, Ms. Ooi relied on an Affidavit sworn on 14 th February 2024 which exhibited the newly instituted proceedings, entitled Yeoksee Ooi v Ireland, the Attorney General, Brian McDonagh and Promontoria Scariff DAC (Record No. HP 2024/698) which seeks various declarations in relation to section 2 of the 1976 Act in the context of Ms. Ooi's unmarried status. While not a matter for this court, in those proceedings Ms. Ooi alleges that the 1976 Act “… insulates both the mortgagor and the bank …” from an alleged “… violation of family rights …” due to the alleged “… artificial impediment of Mr. McDonagh and her not being a married couple.” Citing the examples of the Defendants' two brothers she alleges that “… their marital status saved their wives from the peril of business speculation on their family home.” Essentially, Ms. Ooi sought to adjourn this application and submitted that her recently instituted constitutional challenge in Yeoksee Ooi v Ireland, the Attorney General, Brian McDonagh and Promontoria Scariff DAC (Record No. HP 2024/698) required to be determined before this appeal. Ms. Ooi referred to the recent decision of the Supreme Court in O'Meara & Ors v The Minister for Social Protection & Ors [2024] IESC 1. The Defendant supported Ms. Ooi's application and inter alia submitted that the remortgage on the family home was to support borrowing of €22 million to purchase a data centre in Wicklow.
Mr. Aylward BL opposed the application for an adjournment and made the following submissions. He contended that no constitutional issue arose in this appeal and that the proceedings were straightforward possession proceedings on foot of a contract. Further, the application was in the context of an appeal from the Circuit Court and if any party sought to submit new evidence, the leave of the High Court was required as this court (Barr J.) had, for example, dealt with during the previous week.
Mr. Aylward BL submitted that Ms. Ooi acknowledged that she was not a named party in the matter and was not a named party on the mortgage and thus acknowledged that she had no privity to the contract on foot of which Promontoria was entitled to possession of the property. Ms. Ooi did not dispute the fact that she had no legal interest in the property and acknowledged that Mr. McDonagh had signed a statutory declaration that this was not a family home. The property was therefore not a family home within the meaning of the 1976 Act. In Ulster Bank Ireland DAC v Brian McDonagh & Ors [2023] IECA 265, which involved the same Defendant, the Court of Appeal 2 (Noonan J.) observed at paragraph 7 that it “… was however subsequently demonstrated, and now no longer disputed, that Brian McDonagh has no spouse, but rather a life partner to whom he is not married, and his residence does not constitute a “family home” within the statutory definition.” That Court of Appeal judgment had dismissed an appeal against the single judgment of this court (Sanfey J.) of 14 th March 2023 relating to three cases involving the Defendant and two of his brothers, where Sanfey J. had made an order for sale of the property on foot of a judgment for €19 million that Ulster Bank obtained against the Defendant, that judgment having been well charged against Dromin House. Mr. Aylward BL submitted that Ms. Ooi was free to pursue her constitutional challenge against the State, but this did not in any way impugn the entitlement of Promontoria to the possession of the property in accordance with its contractual rights. Further, Mr. Aylward BL drew the distinction, referred to in the judgment of this court (Sanfey J.) in Ulster Bank Ireland DAC v Brian McDonagh & Ors, that Mr. McDonagh's brothers and their wives were joint owners of their respective family homes.
Mr. Aylward BL made reference to other decisions of this court and the Court of Appeal, including the judgment of Twomey J. in Ulster Bank DAC & Ors v Brian McDonagh, Kenneth McDonagh and Maurice McDonagh [2020] IEHC 185, which was affirmed by the Court of Appeal.
In response to the points which the Defendant raised, Mr. Aylward BL submitted that Dromin House was security for the mortgages that are the subject of these proceedings. In response to the criticisms made by the Defendant, counsel submitted that there was no basis to same and that it was merely a coincidence that the solicitor who the Defendant referred to, and who subsequently became a consultant in AMOSS, was previously the Defendant's solicitor and was working for a different solicitor's firm at the time.
It was submitted that Ms. Ooi's wish to prosecute her constitutional challenge was no basis to delay the hearing of this application (appeal). Ms. Ooi had known about the proceedings for approximately two and a half years, this appeal for over a year and yet the constitutional challenge was instituted two days before this matter was to be heard and, Mr. Aylward BL submitted, was clearly an attempt, together with Mr. McDonagh, to avoid this application being heard.
After hearing from Ms. Ooi, Mr. McDonagh and Mr. Aylward BL, I delivered an ex tempore ruling and refused Ms. Ooi's application for an adjournment of this application.
I found that Ms. Ooi is the life partner of the Defendant/Appellant Mr. Brian McDonagh and referred to the decision in Ulster Bank Ireland DAC v Brian McDonagh & Ors [2023] IECA 265 where the Court of Appeal 3 (Noonan J.) observed at paragraph 7 that Mr. McDonagh has no spouse but rather Ms. Ooi is his life partner to whom he is not married, and his residence does not constitute a “ family home” within the statutory definition.
I further held that in accordance with Practice Direction CC17, which had to be read in conjunction with Order 5B of the Circuit Court rules (as amended), Ms. Ooi had been served with the Circuit Court proceedings in this application as a person in occupation of the premises and principal residence of Mr. McDonagh at the property, and that the Defendant now appealed to this Court against the order of possession granted by the Circuit Court, His Honour Judge Quinn, on 18 th January 2023. I stated that the central basis on which Ms. Ooi sought an adjournment was to prosecute a constitutional challenge concerning, inter alia, section 2 of the 1976 Act.
I held that those proceedings were not a matter for this court, which was dealing with a Circuit Court appeal against the Order of the Circuit Court made on 18 th January 2023. Ms. Ooi had been properly served with those proceedings but was not a party to the proceedings and was not a party to the mortgage. I held that the application made by Ms. Ooi for an adjournment also came very late in the day and in the circumstances, I refused the application for an adjournment.
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