Shay Murtagh Ltd v Cooke

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 15 July 2022
• Neutral Citation: [2022] IEHC 436
• Court: High Court
• Docket Number: RECORD NUMBER: 2022/55 CA

Between

Shay Murtagh Limited

Plaintiff/Respondent

and

Trevor Cooke and Persons Unknown

Defendant/Appellant

[2022] IEHC 436

RECORD NUMBER: 2022/55 CA

CA CIRCUIT COURT: 2022/00019

THE HIGH COURT

Trespass – Possession of property – Interlocutory injunctions – Respondent seeking possession of property – Whether an order restraining trespass ought to be made

Facts: The defendant/appellant, Mr Cooke and persons unknown, appealed to the High Court against interlocutory injunctions granted by the Circuit Court (Judge Fergus) restraining trespass and ordering delivery up of possession to the plaintiff/respondent, Shay Murtagh Ltd, of Apartment 29, First Floor, Aisling Court, Killucan, Co. Westmeath. Mr Cooke was in occupation of the dwelling. He maintained that relief should not be granted on an interlocutory basis in circumstances where he occupied on foot of a tenancy agreement entered into with the former owner of the dwelling and the respondent purchased the dwelling from the receiver to the former owners on notice of its occupation by persons unknown.

Held by Phelan J that, taking all factors advanced in the evidence into account, including the personal circumstances of Mr Cooke as outlined in evidence and accepted by her, she was satisfied that the respondent’s rights outweighed those of Mr Cooke and may only be adequately vindicated by making an order restraining trespass to enable the respondent to recover possession of their property and that such an order was necessary. She was satisfied that the making of such an order was proportionate having regard to the competing interests identified in the evidence.

Phelan J held that the respondent was entitled to possession of the dwelling from Mr Cooke and other persons in occupation and to an order restraining trespass, and she would so order.

Appeal dismissed.

JUDGMENT of Ms. Justice Siobhán Phelan delivered on the 15 ^th day of July, 2022

INTRODUCTION

1 . This matter comes before the Court by way of an appeal against interlocutory injunctions granted by the Circuit Court (Fergus J.) restraining trespass and ordering delivery up of possession to the Plaintiff/Respondent of Apartment 29, First Floor, Aisling Court, Killucan, Co. Westmeath [hereinafter “the dwelling”].

2 . The Named Defendant/Appellant is in occupation of the dwelling. He maintains that relief should not be granted on an interlocutory basis in circumstances where he occupies on foot of a tenancy agreement entered into with the former owner of the dwelling and the Plaintiff/Respondent purchased the dwelling from the Receiver to the former owners on notice of its occupation by persons unknown.

FACTUAL BACKGROUND

3 . The property is comprised in Folio 2440L of County Westmeath.

4 . The evidence adduced on affidavit in support of the injunction application establishes that the Plaintiff/Respondent purchased the leasehold interest in the property, as created by lease dated the 28 ^th of October, 2004 from Kinnegad Construction Limited to Mr. Coyle and Mrs. Coyle for a term of 999 years, from one Mr. Coulston in his capacity as receiver to Mr. Coyle and Mrs. Coyle.

5 . A contract of sale was concluded on the 25 ^th of November, 2021 and it recites on its face that the contract was entered into between Mrs. Coyle and Mr. Coyle acting by their receiver Mr. Coulston and one Ms. Murtagh. Ms. Murtagh is a director of the Plaintiff.

6 . The document schedule to the contract of sale refers to a certified copy mortgage deed dated the 28 ^th of October, 2004 between Mrs. and Mrs. Coyle and the Irish Life and Permanent PLC and a certified copy deed of appointment of the Receiver dated the 4 ^th of August, 2020. This mortgage deed is not exhibited, nor is the deed of appointment of the Receiver.

7 . As a special condition to the Contract of Sale headed “ 7. Occupancy”, it is recorded:

“The property in sale is sold subject to and with an occupancy. The vendor does not hold a copy of any leases or any information relating to the occupiers in the property in sale. It shall be a matter solely after completion for the purchaser to deal with the occupiers. No documents will be provided by the Vendor and no objection, requisition or enquiry shall be raised by the Purchaser in this regard. The Purchaser shall not be entitled to vacant possession of the property in sale on completion of the Sale. General Condition 17 of the General Conditions of Sale is amended accordingly. For the avoidance of doubt, the Purchaser acquires the property in sale with full knowledge and notice of the terms, conditions and provisions of the occupation by the occupiers within the knowledge of the Vendor…The Receiver is not receiving rent in regards this property, therefore General Condition 23 is hereby varied to the effect that if any rent is outstanding to the Vendor for any period up to the date of Completion then the Purchaser shall provide to the Vendor at the cost of the Vendor, all assistance reasonably required to enable the Vendor to recover the said arrears.”

8 . The Plaintiff/Respondent's ownership of the property was registered on the 7 ^th of January, 2022 and registration is relied upon by the Plaintiff/Respondent as definitive evidence of title.

PROCEEDINGS

9 . The Plaintiff/Respondent issued proceedings by way of Equity Civil Bill on the 9 ^th of February, 2022 seeking, inter alia, an injunction restraining the Defendants from trespassing at the dwelling”], an injunction requiring the Defendants to forthwith vacate the dwelling and an order for possession of the said dwelling.

10 . By ex parte application made on the 16 ^th of February, 2022, the Circuit Court (Fergus J.) granted liberty to issue and serve an application for an interlocutory injunction. A Notice of Motion issued returnable to the 23 ^rd of February, 2022, grounded on Affidavits of Mr. Murtagh sworn on the 9 ^th and 17 ^th of February, 2022 and Ms. O'Connell sworn on the 15 ^th of February, 2022 and served on the First Named Defendant and Persons Unknown in occupation of the property.

11 . In his Affidavit sworn on the 9 ^th of February, 2022, Mr. Murtagh identified himself as a director of the Plaintiff company. He exhibited the contract for sale entered into by Ms. Murtagh on behalf of the Company with the Receiver appointed in respect of the interest of Mr. and Mrs. Coyle. Paragraph 7 of the contract of sale between the Receiver and the Respondent expressly provides that the:

“The Vendor does not hold a copy of any leases or any information relating to the occupiers of the property in sale…. The receiver is not accepting rent in regards this property”

12 . He further exhibited the Land Registry Folio showing the registration of the Plaintiff's ownership of the property.

13 . He described the property and gave a summary of the history of litigation concerning the property between Paul and Mary Coyle and Start Mortgages DAC and John Coulston being proceedings issuing in on the 19 ^th of November, 2021 bearing record number 2021/6378P on foot of which a lis pendens had been registered.

14 . He asserted that neither Mr. nor Mrs. Coyle resided at the property but that they had “ installed a number of persons to trespass and secure” the property. He said that he attended at the property on the 27 ^th of January, 2022 to gain access to the property having been contacted by people residing at the complex and An Garda Síochána complaining of anti-social behaviour of “ the persons installed”.

15 . Notably, Mr. Murtagh did not identify his familiarity with the property prior to purchase or his means of knowledge as to its occupants. He stated that the occupants refused to vacate the property but contacted an individual by telephone in his presence. This individual identified himself to Mr. Murtagh as Mr. Coyle and he claimed to be the owner of the property.

16 . He averred to the Plaintiff/Respondent having sought advice from its solicitor as to next steps but that subsequent to this he was contacted by unnamed “ other residents” complaining of altercation between the occupiers on the 2 ^nd of February, 2022 during which it was claimed a communal door to the complex was kicked in (photograph exhibited). He claimed that he attended with the Gardaí at the scene the next day and noted that a camera had been installed.

17 . He claimed that he was informed by another resident (unnamed) that they felt obliged to leave the complex “ for a couple of weeks” due to being intimidated. No details of the allegations of intimidation were provided. He concluded his affidavit by stating that “ it is not absolutely clear if the occupants had been installed by Mr. Coyle but they certainly had his phone number.” He further averred, but without disclosing his means of knowledge in terms of his familiarity with the previous occupation of the property “ to the best of my knowledge and belief the current trespassers started occupying after the purchase by the Plaintiff herein.” He did not in his affidavit address the condition of sale regarding occupancy set out above.

18 . In his subsequent affidavit sworn on the 17 ^th of February, 2022, Mr. Murtagh asserted in very bare terms that he has been contacted by other residents, by An Garda Síochána and by the Management Company in relation to anti-social behaviour. He gives no names or details of incidents. He asserted that certain tenants had refused to involve themselves in the proceedings for fear of reprisals. He referred to his liability for the damage caused to the door and potential liability arising from the actions of the occupants of the property over which he had no control. No particulars of any costs incurred were given.

19 . In her affidavit on behalf of the Plaintiff, Ms. O'Connor said that she was the owner of the management company responsible for the complex in which the property was located. She said that she had been made aware that the Named...