Taite v Beades

• Jurisdiction: Ireland
• Judge: Ms. Justice Mary Irvine
• Judgment Date: 12 December 2019
• Neutral Citation: [2019] IESC 92
• Docket Number: [Supreme Court Record No.: 2013/435]
• Date: 12 December 2019
• Court: Supreme Court

BETWEEN/

DECLAN TAITE

AND

PATRICK BRENNAN

PLAINTIFFS/RESPONDENTS

AND

JERRY BEADES

DEFENDANT/APPELLANT

[2019] IESC 92

Dunne J.

O'Malley J.

Irvine J.

[Supreme Court Record No.: 2013/435]

[Record No.: 2012/7732 P]

THE SUPREME COURT

Banking & finance – Mortgages – Failure to repay – Appointment of receivers – Application for interlocutory relief – Defendant seeking to challenge grant of reliefs

Facts: The appellant had taken out three mortgages with Ulster Bank Ltd, which were later amalgamated into one facility. A demand for repayment was made, but the appellant having failed to repay, the bank had appointed the respondents as receivers. Following the appellant’s alleged interference with the properties in question, the respondents had applied for various interlocutory reliefs which the High Court had granted. The appellant now sought to appeal that order to the Supreme Court.

Held by the Court, that the appeal would be dismissed. Having considered the evidence put before the High Court, it was clear that the trial judge had sufficient grounds to hold that the respondents had a strong case and that damages were an insufficient alternative remedy. The grant of the reliefs sought was therefore within his discretion and could not be impugned.

JUDGMENT of the Court delivered by Ms. Justice Mary Irvine this 12th day of December 2019

1 This is an appeal brought by Mr. Jerry Beades, the defendant to the within proceedings, against the judgment and order of the High Court, McDermott J. of 30th September, 2013. That order was made in the context of an application brought by the plaintiffs, Mr. Declan Taite and Mr. Patrick Brennan, for various interlocutory reliefs detailed in a notice of motion dated 24th July, 2013.

2 The order of the High Court provides as follows:

(1) that Mr. Beades and/or his agents/persons acting in consort with him, be restrained pending the trial of the action from entering onto or otherwise interfering with the three properties schedules to the notice of motion;

(2) that Mr. Beades and his agents/persons acting in consort with him be restrained from harassing or intimidating any occupant of the aforementioned premises;

(3) that Mr. Beades's application for access to the digital audio recording of the injunction application stand refused;

(4) that the costs of the application be reserved to the trial, and

(5) that execution on foot of the order be stayed for a period of two weeks.

3 By notice of appeal dated 18th October, 2013, but received on 25th October, 2013, Mr. Beades challenges the lawfulness of the High Court order. In deference to Mr. Beades who did not have the benefit of legal representation on his appeal, and in order to identify the scope of the present appeal, the court will take the unusual step of setting out his grounds of appeal in full. These are as follows:

(1) That the learned High Court Judge misdirected himself in law and/or in fact in granting the orders on 30th September, 2013.

(2) That the learned trial judge misdirected himself in law and/or fact in granting the orders when none of the original title deeds/documents were before the court.

(3) That the learned trial judge misdirected himself in law and/or in fact in allowing an additional procedure to be permitted when appointing receivers so that the bank can appoint individuals referred to as “our attorneys ‘in place of directors as set out in s. 64 of the Land Law and Conveyancing Law Reform Act 2009 (herein after “the 2009 Act”). Mr. Beades flags as relevant Dunne's J. ruling delivered on 25th July, 2011, in “ Start Mortgages Case No. 2009/1397 S.P.”, where she stated in the last paragraph of that case “it is not for the court to supply that which is not contained in the 2009 Act”.

(4) That the learned trial judge failed to recognise the fundamental rights and personal rights of Jerry Beades as set out in Articles 40.3.1° and 40.3.2° of the Constitution of Ireland. He did so when he refused to uphold the law as set out in the 2009 Act, s. 64(2)(b)(ii).

(5) That the learned trial judge erred in accepting hearsay evidence on behalf of the receivers. This type of evidence is supposed to have become the standard norm in receiver applications before the court nowadays. A similar pattern of evidence was also contained in High Court record number 2013/7806 P. This, he says, is contrary to the concept of fair procedure under the Constitution of Ireland and the European Convention of Human Rights.

(6) That the learned trial judge erred in his refusal of access to the digital audio recording, further infringing the rights of the citizen. This is contrary to the concept of fair procedure and creates a further injustice in breach of the Constitution of Ireland and the European Convention of Human Rights.

(7) That the learned trial judge, in refusing to extend the period of application for a stay beyond two weeks. This created a further injustice as the period allowed for appeals, 21 days plus 7 days to lodge the papers in the Supreme Court Office and only then can an application for a stay be made, which usually requires a further two weeks.

(8) He also requests that when the transcript of the digital audio recording of the hearings is obtained, alternations to the grounds of appeal may need to be made.

Background

4 The following background facts emerge from the affidavits and exhibits admitted in the hearing of the injunction application. These are the affidavits of Mr. Taite sworn on 24th July, 2013, and that of Mr. Beades sworn on 23rd September, 2013.

5 On 4th December, 2006, and 7th April, 2006, Mr. Beades took out three mortgages with Ulster Bank Ireland Limited (hereinafter “the bank”) which were secured over the properties identified at paras. (a), (b) and (c) of the schedule to the notice of motion (“the premises”) seeking interlocutory relief.

6 All of the deeds of mortgage are in identical terms. Of particular relevance to this appeal are Clauses 11.1 and 11.2 which provide as follows:-

“11.1 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 (herein called ‘Receiver’ which expression shall where the context so admits include the plural and any substituted receiver and manager or receivers and managers) of the secured assets or any part or part thereof and from time to time under seal or underhand of a duly authorised officer of the bank remove any receiver so appointed and may so appoint another or other in his stead. If the bank appoints more than one person as receiver of any of the Secured Assets, each such personal shall be entitled (unless the contrary shall be stated in the appointment) to exercise all the power and discretions hereby or by statute conferred on receivers individually and to the exclusion of other or others of them.

11.2 The foregoing powers of appointment of a receiver 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 there over or over any other part of the secured assets.”

7 By loan facility dated 26th May, 2010, the loans earlier referred to were amalgamated into a new facility made available by the bank to Mr. Beades. This is the facility referred to by Mr. Taite at para. 8 of his affidavit and was for the sum of €3,270,000. That facility was repayable on demand. According to Mr. Taite, by letter dated 13th March, 2013, the bank made demand for repayment of all monies due on foot of the said facility. The letter exhibited in support of that averment was undated. Mr. Beades does not deny receiving this letter or his failure to respond to it. Rather, he claims the demand was invalid by reason of the fact that the letter was undated.

8 Due to the failure of Mr. Beades to meet the demand for repayment, on 19th March, 2013, the bank appointed Mr. Taite and Mr. Brennan joint receivers and managers over the aforementioned properties.

9 Following their appointment, the receivers appointed property managers and letting and sales agents and also engaged security personnel to secure the properties.

10 Due to Mr. Beades's alleged interference with the properties as described by Mr. Taite in his affidavit, the within proceedings were commenced by plenary summons dated 24th July, 2013. On the same date, the receivers filed a notice of motion seeking interlocutory relief in the terms ultimately granted by the court. Mr. Taite maintained that since their appointment as receivers, Mr. Beades had obstructed their efforts to take control and deal with the properties and had, in particular, attempted to gain access to and change the locks on the premises of 3 Clancy Court, which had been vacant as of the date of their appointment. In further support of their complaint that Mr. Beades was frustrating their activities as receivers they relied upon an incident report prepared by Ktech, a security firm which had been retained to secure the premises as well as other documents which included a number of photographs of Mr. Beades and various vehicles bearing his name stated to have been taken at 3 Clancy Court.

11 Also exhibited by Mr. Taite in his grounding affidavit was an email sent by Mr. Beades on 4th April, 2013, challenging the validity of his appointment and that of Mr. Brennan. He asserted that there existed a substantial dispute between himself and the bank...