Tarbutus Ltd v Conor Hogan

• Jurisdiction: Ireland
• Judge: Mr. Justice Holland
• Judgment Date: 15 December 2021
• Neutral Citation: [2021] IEHC 786
• Court: High Court
• Docket Number: [2020/6225P]

Between

Tarbutus Limited

Plaintiff

and

Conor Hogan

Defendant

[2021] IEHC 786

[2020/6225P]

THE HIGH COURT

Injunctive relief – Trespass – Entitlement to possession – Plaintiff seeking various forms of injunction against trespass by the defendant – Whether the plaintiff owned and was entitled to possession of the property

Facts: The plaintiff, Tarbutus Ltd (Tarbutus), an English-registered company, sought by plenary action on oral evidence, various orders relating to a duplex apartment comprising Folio 8118L County Limerick and known as Apartment 9B Ballycummin Village, Ballycummin, County Limerick (the Apartment). Tarbutus sued as registered owner of the Apartment. The reliefs sought were essentially and in substance various forms of injunction against trespass by the defendant, Mr Hogan. Mr Hogan resisted the claim, asserting his ownership and continued possession of the Apartment.

Held by the High Court (Holland J) that, having proved its registered title and the Register being conclusive as to title, Tarbutus was presumptively entitled to the orders which it sought. Mr Hogan having failed to show a good defence, Holland J held that Tarbutus’s presumptive entitlement translated to an actual entitlement.

Holland J granted the injunctive reliefs which Tarbutus sought.

Reliefs granted.

Contents

JUDGMENT of Mr. Justice Holland delivered on the 15th of December, 2021	2
INTRODUCTION & THE FOLIO	2
SECTION 62 OF THE REGISTRATION OF TITLE ACT 1964	5
PLAINTIFF'S CLAIM, SECTION 31 REGISTRATION OF TITLE ACT 1964 & CONCLUSIVITY OF REGISTER	7
DEFENDANT'S CASE	12
PROCEDURAL POSSIBILITY OF RECTIFICATION OF THE REGISTER FOR FRAUD OR MISTAKE	13
POSITED DEFENCES	15
The Evidence	15
Abuse of Process	15
That BoS had no power to transfer the Charge to Tanager	15
The absence of the Contract of Sale from Tanager to Tarbutus	16
The Tanager to Tarbutus Transfer identified the Transferee as “Tarabutus” and “the Bank” as selling as mortgagee	16
Tarbutus was “dormant” and lacked legal personality at its purchase of the Apartment	18
The 2017 proceedings & alleged deception by Tanager and Mr Kavanagh	19
Tanager to Tarbutus sale of off-market at undervalue	19
Receiver in breach of duty of care to Mr Hogan	21
The Anonymous Beneficial Owners	22
Mr Hogan remains in possession & the events of 14 July 2020	22
Mr Hogan's belated knowledge of the sale	24
Deed of charge not returned to Mr Hogan	24
Further issue	24
Fraud and Deception Allegations — General Observation	24
Landmark Case	25
CONCLUSION	25

JUDGMENT of Mr. Justice Holland delivered on the 15 ^th of December, 2021

INTRODUCTION & THE FOLIO

1 The Plaintiff (“Tarbutus”), an English-registered company, seeks in these proceedings by plenary action on oral evidence, various orders relating to a duplex apartment comprising Folio 8118L County Limerick and known as Apartment 9B Ballycummin Village, Ballycummin, County Limerick (“the Apartment”). Tarbutus sues as registered owner of the Apartment. The reliefs sought are essentially and in substance various forms of injunction against trespass by the Defendant (“Mr Hogan”).

2 Also sought in the pleadings were an order for the delivery up by Mr Hogan of certain books and records and damages for trespass but these reliefs were not pursued at trial. Mr Hogan resists the claim, asserting his ownership and continued possession of the Apartment. The dispute, essentially, is as to who owns and is entitled to possession of the Apartment.

3 By the Statement of Claim,

• • Mr Hogan is sued as a former mortgagor and former registered owner of the Apartment.

• • Tarbutus acquired title by Transfer dated 30 July 2019 from Tanager DAC exercising its power of sale pursuant to a charge on the Apartment which transfer resulted in the registration by the Property Registration Authority (“PRA”) of Tarbutus as full owner thereof.

• • In August to October 2019 the Plaintiffs found the Apartment tenanted. The Plaintiff served a termination notice on the tenants, who vacated the Apartment in early July 2020. I should say that the Plaintiff led little evidence of detail in this regard but the Defendant admitted he had had tenants in the Apartment and it was clear in the Plaintiff's evidence, and I so find, that they were no longer in occupation as at 14 July 2020.

4 The trial took place on 15 October 2021 and 20 October 2021. Tarbutus appeared by counsel. Mr Hogan appeared in person with a McKenzie friend.

5 A certified copy Folio 8118L County Limerick, tendered in evidence by Tarbutus, records the history of the registered ownership of, and charges on, the Apartment as follows:

• • It identifies the lands as “ the apartment known as No 9 Block B Ballycummin Village situate in the townland of Ballycummin and the Barony of Pubblebrien”, in two parcels described as the second floor and the mezzanine floor.

• • Mr Hogan was registered as full owner from 26 July 2001.

• • The ownership of Bank of Scotland (Ireland) Limited (“BoSI”) of a charge for present and future advances repayable with interest (“the Charge”) was registered with effect from 15 January 2007.

• • Tanager Limited (since “Tanager DAC” — hereafter “Tanager”) was registered as owner of the Charge from 25 April 2014.

• • On 9 September 2019 the following occurred, as the copy Folio records:

  • ○ Mr Hogan's ownership was cancelled

  • ○ The Charge was cancelled

  • ○ Tarbutus was registered as full owner.

6 So, the Folio identifies Tarbutus, not as assignee or owner of the Charge, but as full owner of the Apartment and it records the cancellation of Mr Horgan's ownership. In the ordinary way, that is conclusive of its title and entitles Tarbutus to possession and occupation of the Apartment as against Mr Hogan.

7 No evidence was tendered by either side of any history of payments in discharge or part-discharge of any advances or debt underlying the Charge or of any default in such payments.

8 Mr Hogan sought to adjourn the case as not ready for trial. This was first, on the ground that interrogatories, which Mr. Hogan had delivered to Tarbutus on 11 October 2021 (4 days before trial) but for the administration of which he had got no order, remained unanswered and second, because he had, in September 2021, issued a motion returnable to 6 December 2021 to consolidate the proceedings with two other proceedings. The first of these were proceedings 2020/5335P, in which Mr Hogan by plenary summons issued on 24 July 2020 sought, inter alia, to establish against various parties, including Tarbutus, his ownership of the Apartment. Other than the motion to consolidate it is not apparent that Mr Hogan has taken any steps to advance those proceedings since issuing them. The second were plenary proceedings 2017/8017P in which Tom Kavanagh (as receiver) and Tanager DAC sought possession of the Apartment and in which proceedings, Mr Hogan says, an interlocutory injunction application by the Plaintiffs was adjourned 13 times until, on 17 February 2020, it was adjourned generally for Covid-19 reasons. Apropos his adjournment application he also pointed out that there was no certificate of readiness in the present proceedings.

9 I refused that adjournment application for reasons given at the time, but which included observing that, though I was entitled to adjourn the trial if I thought it proper, Allen J had, in July 2021, instead of deciding an interlocutory injunction application by Tarbutus, assigned the present trial date in the knowledge of Mr Hogan's desire to administer interrogatories and pursue consolidation and, presumably, the absence of a certificate of readiness. Also, Allen J, managing the Chancery list, had at the callover on 15 October 2021 at which the matter was sent to me for trial, been addressed by Mr Hogan on those issues and nonetheless sent the matter for trial by me. I also considered that, while I was not familiar, save in outline, with proceedings 2017/8017P, Mr Hogan had not demonstrated their relevance to the present action: indeed, it seemed to me that in practical terms it was likely that those proceedings had been overtaken by the transfer of the Apartment to Tarbutus, at least insofar as concerned questions of entitlement to possession and occupation of the Apartment. As to proceedings 2020/5335P, Counsel for Tarbutus did not oppose my taking a liberal view of Mr Hogan's pleaded Defence in the present action as encompassing issues he raised in those proceedings – in particular his argument, in reliance on Kavanagh v McLoughlin 1, that Bank of Scotland plc (BoS”) had had no power to transfer the Charge to Tanager and, accordingly Tanager had had no title to sell to Tarbutus. Counsel also accepted that Mr Hogan could ventilate his allegations of fraud – but only allegations against Tarbutus – and while denying that such fraud had occurred. I also expressed my willingness to canvass the question of amendment of Mr Hogan's Defence if needs be to seek rectification of the Register by way of Counterclaim.

10 During the trial, Mr Hogan also pointed out, correctly, that the Plenary Summons dated 8 September 2020 and Statement of Claim dated 12 November 2020 in these proceedings both purported to identify the Apartment by reference to a schedule, but no schedule was attached to either document. However, the Statement of Claim identified the property at issue as “9B Ballycummin Village, Ballycummin, County Limerick” and as a “ domestic dwelling/an apartment”. I considered that, despite the omission of the schedules, the Statement of Claim had adequately identified, and apprised Mr Hogan of the identity of, the property at issue such that he would not be unfairly prejudiced by Tarbutus's being permitted to amend its pleadings by the addition of the schedule. So, I gave Tarbutus liberty to...