Taite & anor -v- Beades, [2013] IEHC 440 (2013)

Docket Number:2013 7732 P
Party Name:Taite & anor, Beades
Judge:McDermott J.
 
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THE HIGH COURT[2013 No. 7732 P]BETWEENDECLAN TAITE AND PATRICK BRENNANPLAINTIFFSANDJERRY BEADESDEFENDANTANDTHE OCCUPANTS FOR THE TIME BEING OF 3 CLANCY COURT, FINGLAS, DUBLIN 11NOTICE PARTIESJUDGMENT of Mr. Justice McDermott delivered on 30th September, 20131. The plaintiffs’ claim is as duly appointed receivers over a number of properties owned by the defendant. The properties in issue are 65 Clancy Court, including residential properties known as 1 and 3 Clancy Court, Finglas, Dublin 11 (Property A), 67 and 69 Clancy Road, Finglas, Dublin 11 (Property B) and 116A McKee Road, Finglas, Dublin 11 including residential properties known as 2 and 4 Clancy Court, Finglas, Dublin 11 (Property C). It is claimed that each of these properties is a residential investment property owned by the defendant, some of which are occupied by tenants.2. The plaintiff seeks interlocutory relief as set out in the notice of motion dated 24th July, 2013, as follows:-“1. An order restraining the defendant his servants or agents and all persons acting in concert with him from interfering with and/or attempting to frustrate the activities of the plaintiffs as joint receivers and managers over the premises identified in the schedule hereto…pending further order of this Honourable Court or the determination of these proceedings;2. An order restraining the defendants and each of them their servants and agents and all persons acting in concert with them from entering onto or otherwise interfering with the premises without the express consent of the plaintiff, pending further order of this Honourable Court or the determination of these proceedings;3. An order restraining the defendant, his servants and agents and all persons acting in concert with him from harassing or intimidating any occupant of the premises, pending further order of this Honourable Court or the determination of these proceedings.”An order seeking possession of the premises was not pursued.3. By mortgage dated 4th December, 2006, between the defendant and Ulster Bank Ireland Limited, Property A was charged by the defendant to the Bank to secure loan facilities advanced by the Bank to the defendant. The secured loan liability included all monies which were then or at any time thereafter became due and owing by the borrower to the Bank on any current or other account in any manner whatever without limitation. The defendant agreed to pay and discharge the secured liabilities on demand and the Bank’s interest was ranked as a first charge on the property.4. Clause 11 of the mortgage agreement provides for the appointment and powers of a receiver. Clause 11.1 provides:-“At any time after the security hereby constituted has become enforceable or at any time after the borrower so requests the Bank may from time to time appoint under seal or under hand of a duly authorised officer or employee of the Bank any person or persons to be receiver and manager or receivers and managers…of the secured assets or any part or parts thereof…”Clause 11.2 provides that these powers:-“shall be in addition to and not be to the prejudice of all statutory and other powers of the Bank under the Conveyancing Act 1881 – 1911 (and so that any statutory power of sale shall be exercised although without the restrictions contained in s. 20 of the Conveyancing Act 1881) or otherwise and so that such powers shall be and remain exercisable by the Bank in respect of any part of the secured assets notwithstanding the appointment of a receiver thereover or over any other part of the secured assets.”The receiver is empowered to exercise all powers conferred by the Conveyancing Acts 1881 – 1911, as if appointed under those provisions. The receiver is conferred under the deed with extensive powers, including powers to deal with tenants at clause 11.4.7.5. The plaintiffs claim that the loan facilities are secured by a first charge over each of the properties the subject of these proceedings as set out in a letter dated 26th May, 2010, in the sum of €3,270,000.00.This letter was signed by the defendant on 21st July, 2010. It was signed on behalf of the Bank by a Manager and Associate Director.6. An undated letter of demand was sent by courier to the defendant on or about 13th March, 2013. It is claimed that the defendant’s failure to comply with that demand constituted an enforcement event which entitled the Bank to appoint “any person or persons to be receiver”.7. In a separate Deed of Mortgage dated 7th April, 2006, 67 and 69 Clancy Road (Property B) were charged by the defendant to the Bank. The terms of this Deed of Mortgage are identical to the first mortgage in respect of Property A. The Bank’s letter of demand delivered on or about 13th March, 2013, by courier is also relied upon in respect of Property B and the defendant’s failure to comply with that demand is said to constitute an enforcement event under the terms of this mortgage.8. In a third Deed of Mortgage also dated 7th April, 2006, 116A McKee Road was charged by the defendant to the Bank. Since that charge was executed 2 and 4 Clancy Court, Finglas, Dublin 11 were constructed by the defendant to the rear of 116A McKee Road on the lands charged to the Bank. The failure by the defendant to comply with the same letter of demand in respect of Property C is also said to constitute an enforcement event under the terms of this mortgage.9. I do not accept the proposition that because the letter of demand was undated, it could not have formed the basis of an enforcement event. I am satisfied that the defendant received the demand on or about 13th March, 2013.10. Each of these Deeds of Mortgage was “signed, sealed and delivered” by the defendant. The defendant submits that the absence of any signature or seal on the part of Ulster Bank Ireland Limited to the Deeds of Mortgage in each of these cases renders them invalid. Section 2 of the Statute of Frauds (Ireland) 1695 requires that a memorandum or note in writing required under the section must be signed, but it does not require the signature of both parties. It is only necessary that a signature is provided by “the party to be charged therewith”.11. In each of the Deeds of Mortgage the defendant warranted that he was the lawful owner of each of the properties. He does not deny that he is the owner of the properties and that he received the money, the subject of the letter of demand, or that he failed to pay the money demanded of him.12. The defendant makes a number of legal points which are set out in this affidavit which was filed on the day of the hearing on 23rd September, 2013. In particular, at paras. 7 – 13, the defendant challenges the validity of the appointment of the receivers on a number...

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