Start Mortgages DAC v Kavanagh
| Jurisdiction | Ireland |
| Judge | Ms. Justice Roberts |
| Judgment Date | 14 March 2023 |
| Neutral Citation | [2023] IEHC 131 |
| Court | High Court |
| Docket Number | 2021 No. 3794P |
[2023] IEHC 131
2021 No. 3794P
THE HIGH COURT
JUDGMENT of Ms. Justice Roberts delivered on 14 March 2023
. This judgment deals with three separate motions issued by the defendants as follows:
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(a) A motion dated 19 October 2022 requiring the plaintiff pursuant to Order 31 rule 11 of the Rules of the Superior Courts (‘ RSC’) to answer each of the interrogatories of the first named defendant delivered on 7 September 2022. That motion also seeks a declaration pursuant to Order 31 rule 1 RSC that the first named defendant had lawfully accrued the right to deliver these interrogatories without requiring court leave to have done so (the ‘ Interrogatories Motion’).
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(b) A motion dated 5 January 2023 seeking to join the Property Registration Authority (the ‘ PRA’) and Mr Damian Cleary as defendants to these proceedings (the ‘ Joinder Motion’).
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(c) A motion dated 30 August 2022 seeking to restrain the PRA from registering any new full owners of the lands comprising Folio 9004F Co Carlow pending the determination of these proceedings or an Order reversing any such registration in the PRA if the same was effected prior to the determination of the motion (the ‘ PRA Motion’).
. The Interrogatories Motion was heard by this court on 14 February 2023.
. The Joinder Motion and the PRA Motion were heard together by this court on 28 February 2023. While there was some argument as to whether the PRA Motion was properly before the court on that occasion, I allowed the matter to proceed and this judgment will therefore deal with the PRA Motion.
. While the motions deal with different issues, all arise in the context of the same proceedings. I intend therefore in this judgment to set out a general summary of the background to these proceedings and to consider the relevant pleadings, as this is the context in which all motions before this court arise and will have to be determined. I will then deal with the motions in turn.
. The defendants are a married couple. By loan offer dated 13 June 2007, Bank of Scotland (Ireland) Limited, then trading as Halifax, (‘ BOSI’) agreed to provide the defendants with a loan facility for €110,000 to purchase the property the subject of these proceedings being the property comprised in Folio 9004F of the register of freeholders Co Carlow (the ‘ Property’), which was to be their home. The defendants entered into a deed of mortgage with BOSI on 6 July 2007.
. The defendants executed a first legal charge over the Property in favour of BOSI which secured the loan on the Property in compliance with the deed of mortgage. This charge was registered as a burden on the Property by BOSI on 21 September 2007.
. BOSI transferred all its assets and liabilities (including the charge on the Property) to its parent company, Bank of Scotland plc (‘ BOS’) by operation of law with effect from 23:59 hours on 31 December 2010. This transfer was effected by cross-border merger pursuant to European Communities (Cross Border Mergers) Regulations 2008 of Ireland and the Companies (Cross Border Mergers) Regulation 2007 of the United Kingdom approved by the High Court of Ireland on 22 October 2010 and by the Scottish Court of Session on 10 December 2010.
. On 11 October 2014, BOS sold its loan portfolio and related securities, including the security on the Property, to LSF IX Paris Investments Limited (‘ LSF’) by way of purchase deed.
. On 14 January 2015 LSF exercised its entitlement under the purchase deed to nominate the plaintiff to purchase what are described as the purchased assets.
. On 3 February 2015 an accession deed was entered into between BOS and the plaintiff pursuant to which the plaintiff assumed certain of LSF's obligations under the purchase deed and became entitled to acquire the purchased assets. Accordingly, the plaintiff became the legal assignee of the defendants' mortgage and security on the Property in February 2015.
. The plaintiff became the registered owner of the former BOSI charge on the Property on 10 April 2015.
. On 28 May 2015 the plaintiff was substituted for BOS in Circuit Court proceedings which BOS had issued against the defendants on 21 October 2013 seeking possession of the Property arising from the defendants' default under their loan secured on the Property.
. On 14 June 2016 the Circuit Court granted an Order for possession of the Property to the plaintiff.
. The defendants did not appeal the Circuit Court Order within the time limited by the RSC and, in December 2016, they issued a motion seeking an extension of time to appeal. That extension of time was granted by the Master of the High Court.
. The appeal to the High Court was heard by Noonan J (under proceedings 2016/279 CA in the matter of Start Mortgages Limited v Kavanagh [2017] IEHC 433) who delivered judgment on 4 July 2017 dismissing the appeal. At para 26 of his judgment Noonan J stated: “ I am satisfied therefore that the plaintiff's proofs are now, and were at the time the matter was before the Circuit Court, perfectly in order and the plaintiff is entitled to judgment for possession accordingly”.
. An Execution Order issued from the Circuit Court office on 14 March 2019 in respect of the Property.
. The plaintiff's evidence is that its first attempt to execute the Order on 18 November 2019 was opposed and abandoned. The plaintiff successfully effected possession of the Property on 17 February 2020 but later that day the defendants and/or persons acting on their instructions forced entry into the Property and regained physical possession.
. This situation gave rise to the current proceedings which commenced by plenary summons on 19 May 2021 in which an application was made by the plaintiff for an interlocutory injunction restraining the defendants, their servants or agents, from trespassing upon or otherwise entering the Property.
. The application for injunctive relief was heard by Mr Justice Allen who delivered his judgment on 3 March 2022 (in Start Mortgages DAC v Kavanagh [2022] IEHC 114). At paragraphs 2 and 3 of his judgment Allen J stated: “ Start is plainly entitled to the order which it seeks.… In truth it is a perfectly simple case. Mr and Mrs Kavanagh have defied the process of the law”.
. Allen J sets out in some detail the defence offered by the defendants and the arguments advanced (at paras 22–56 of his judgment). At paragraph 56 of his judgment Allen J states
“ This is not a case of a mortgagee or receiver seeking to take the law into his own hands but of a mortgagee who was put into possession of the mortgaged property in accordance with law by an officer of the Circuit Court duly authorised by law. The force which was used – and which Mr. Kavanagh does not suggest was not entirely necessary – was lawfully used.”
. Allen J granted interlocutory relief to the plaintiff to which he stated (at para 57) the plaintiff was “ entitled as a matter of right”. The interlocutory Order made in terms restraining the defendants from trespassing upon or entering the Property remains in place pending the trial of these proceedings.
. A further application was made by the plaintiff to the High Court on 31 May 2022 seeking an Order pursuant to Order 44, RSC for the attachment and committal of the first named defendant and three other named individuals for their alleged failure to comply with the Order of the High Court (Allen J) made on 3 March 2022.
. That application was heard by Ms Justice Egan who delivered her judgment on 2 June 2022 ( Start Mortgages DAC v Kavanagh [2022] IEHC 348). In para 23 of her judgment she states:
“ In this case I find that, in continuing to trespass upon the property, the first named defendant wilfully disobeyed the order of 3rd March 2022. Further, I am satisfied, beyond a reasonable doubt, that the first named defendant was fully aware of the order and of the consequences of breaching it. I am further satisfied that the first named defendant has been afforded abundant opportunity to comply with the order of 3rd March, 2022, up to and including immediately before I delivered judgment, but has repeatedly and steadfastly refused to do so. I am therefore satisfied beyond reasonable doubt that the first named defendant is in breach of paragraph 1 of the order of Allen J. of 3rd March, 2022 and in contempt of court by trespassing upon or otherwise entering the property.”
. There is no direct evidence before this court regarding what occurred after the Order of Ms Justice Egan was made although it appears that the first defendant was imprisoned for a period of time for contempt of court.
. In his affidavit sworn 23 August 2022, the first named defendant confirms at para 9 that “ over this past weekend it has come to my attention that an application is pending in the PRA against the family dwelling.” This is the affidavit grounding the PRA Motion to which I will return.
. At the hearing of this matter on 28 February 2023, counsel for the plaintiff confirmed to the court that the Property has been sold to a third-party purchaser, Mr Damien Cleary, and that the defendants are no longer in possession of the Property. In those circumstances it appears that the plaintiff's claim in these proceedings is now a claim for damages for a period of approximately 18 months during which the defendants are alleged to have trespassed on the Property.
. The defendants have delivered a detailed defence and counterclaim. Given the relevance of this to all the motions before this court, I now propose to consider this pleading in some detail.
. The defence...
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