Tarbutus Ltd v Hogan
| Jurisdiction | Ireland |
| Judge | Donnelly J |
| Judgment Date | 08 February 2023 |
| Neutral Citation | [2023] IECA 23 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No.: 2022/34 |
Whelan J
Donnelly J
Butler J
Record No.: 2022/34
THE COURT OF APPEAL
Trespass – Injunctions – Adjournment – Respondent seeking various forms of injunction against trespass by the appellant – Whether there was a breach of the appellant’s rights to natural and constitutional justice in the refusal to adjourn the plenary hearing
Facts: The respondent, Tarbutus Ltd, brought plenary proceedings in the High Court against the appellant, Mr Hogan. The respondent, as the registered owner of a duplex apartment, sought and obtained from the High Court various forms of injunction against trespass by the appellant. The apartment was not the family home or private residence of the appellant. There were two main strands of the appellant’s appeal to the Court of Appeal. The first was process orientated and concerned primarily, but not solely, with whether the trial of the action ought to have proceeded when, as the appellant claimed, he was not ready. The second strand reflected in large part the arguments he had made in the High Court as to the deficiencies in the proofs of the respondent, in reliance, primarily, on alleged deficiencies in the transfer from Tanager Ltd to the respondent and on his own right to possession of the property.
Held by Donnelly J that there was no breach of the appellant’s rights to natural and constitutional justice in the refusal of the High Court to adjourn the plenary hearing. Donnelly J held that the appellant was well aware that the matter had been set down for hearing. Donnelly J held that there was no actual prejudice in proceeding to hear the case as the applicant was entitled to ask all the questions of the witness for the respondent that he sought to ask in interrogatories (which he had only sent four days before the date of hearing). Donnelly J held that there was also no prejudice in refusing to adjourn the hearing until the motion for consolidation of the proceedings with two other sets of proceedings was heard. Donnelly J held that there were no other procedural irregularities in the proceedings in the High Court. Donnelly J held that the respondent was the registered full owner of the apartment. Donnelly J held that the register was conclusive evidence as to the title of the land. Donnelly J held that it would only be in the case of actual fraud or mistake that this title may be affected. Donnelly J held that, in the case of actual fraud or mistake, a court of competent jurisdiction may make an order directing the register to be rectified in such manner and on such terms as the court thinks fit. Donnelly J held that the appellant did not meet the threshold to establish grounds for rectification. Donnelly J held that the trial judge was correct in holding that the respondent, in producing the folio, had established its title to the property and was presumptively entitled to the injunctions prohibiting trespass by the appellant, his servant or agents and/or any other person acting on his direction or instruction. Donnelly J held that the trial judge was correct in finding that the appellant had not established any good defence against that entitlement. Donnelly J held that the trial judge was therefore correct in granting the injunctive reliefs to the respondent.
Donnelly J dismissed the appellant’s appeal. Donnelly J affirmed the order of the High Court, correcting it by removing the reference to “23rd December” on page 3 thereof and substituting “22nd December” in its place. Donnelly J held that the respondent, having been entirely successful in the appeal, was presumptively entitled to its costs of the appeal.
Appeal dismissed.
Judgment of Donnelly J delivered on this the 8th day of February, 2023
Tarbutus Limited (“Tarbutus”), the respondents to this appeal, brought plenary proceedings in the High Court against the defendant, Mr. Hogan who is the appellant in this appeal. In these proceedings, Tarbutus, as the registered owner of a duplex apartment comprising Folio ****L County Y and known as Apartment 9B, B… Village, B…, County Y (“the Apartment”), sought and obtained from the High Court various forms of injunction against trespass by Mr. Hogan. The Apartment was not the family home or private residence of Mr. Hogan.
In his written judgment [2021] IEHC 786, Holland J. noted that the folio records the history of the registered ownership of, and charges on, the property as follows:
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• “It identifies the lands as “ the apartment known as No 9 Block B, B… Village situate in the townland of B… and the Barony of P….”, in two parcels described as the second floor and the mezzanine floor.
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• 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.
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• 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:
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○ Mr. Hogan's ownership was cancelled
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○ The Charge was cancelled
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○ Tarbutus was registered as full owner.” (para 5, [2021] IEHC 786)
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Thus, as Holland J. stated, “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. Hogan'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”. Throughout the plenary hearing 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.
The evidence demonstrated that, at the time of the sale from Tanager to Tarbutus, Tanager was not in physical possession of the property. The sale price was €24,000. At the time of the sale, the open market value of the Apartment with title clear of litigation was a considerable multiple of that price.
By notice of motion issued on 3 November 2020, Tarbutus sought interlocutory injunctions compelling Mr. Hogan to vacate the premises but ultimately interlocutory relief was not granted. Allen J. adjourned the application and directed that Mr. Hogan deliver a defence. On 22 July 2021 Allen J. listed the substantive matter for hearing.
On 15 October 2021, at the outset of the plenary hearing, Mr. Hogan made an application for an adjournment but that was refused. During the hearing, Tarbutus called three witnesses; their primary witness being its sole director, Mr. Craig Harvard. Mr. Hogan, who represented himself, gave evidence in his own defence and did not call any other witnesses. His evidence-in-chief related solely to what occurred on 14 July 2020 when one Mr. Hanrahan, acting on behalf of Tarbutus, arrived to change the locks on the Apartment. On cross examination, Mr. Hogan confirmed his home address was elsewhere at the time he issued his own plenary summons in 2020.
In 2017, Tanager and the receiver appointed by Tanager brought proceedings against Mr. Hogan and another person seeking possession of the Apartment (Record No. 2017/8017P). Tarbutus are not a party to those proceedings.
Mr. Hogan also instituted proceedings against Tanager, the Receiver appointed by Tanager and Tarbutus (ref: Hogan v Tanager Ltd & Others (Record No. 2020/5335 P)). In those proceedings, Mr. Hogan sought to challenge the transfer of property by Tanager to Tarbutus. A defence was delivered by Tarbutus in those proceedings on 24 June 2021.
The essence of Tarbutus' case was that on proof of the certified copy folio, it had established, pursuant to s. 31 of the Registration of Title Act, 1964 (“the 1964 Act”), its full ownership of the Apartment and therefore its entitlement to the reliefs claimed in trespass against Mr. Hogan.
S. 31(1) provides as follows:
“31.—(1) The register shall be conclusive evidence of the title of the owner to the land as appearing on the register and of any right, privilege, appurtenance or burden as appearing thereon; and such title shall not, in the absence of actual fraud, be in any way affected in consequence of such owner having notice of any deed, document, or matter relating to the land; but nothing in this Act shall interfere with the jurisdiction of any court of competent jurisdiction based on the ground of actual fraud or mistake, and the court may upon such ground make an order directing the register to be rectified in such manner and on such terms as it thinks just.”
S. 31(1) of the 1964 Act was considered by the Court of Appeal (per Baker J.) in the decision of Tanager DAC v Kane [2019] IR 385, [2019] IEHC 801 and has been applied in a number of subsequent decisions. The trial judge addressed that decision in his judgment as set out herein.
In his judgment, Holland J. identified the broad arguments made by Mr. Hogan in his defence as follows:
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a) “These proceedings were an abuse of process in that he, Mr. Hogan, had already issued Plenary Proceedings 2020 5335P seeking rectification of the Register.
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b) In reliance on Kavanagh v McLoughlin ( sic) [2015] 3 IR 555, [2015] IESC 27, that Bank of Scotland (BoS) had had no power to transfer the Charge to Tanager and, accordingly Tanager had had no title to sell to Tarbutus and so it was a fraudulent transaction.
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c) The sale of the Apartment from Tanager to Tarbutus was vitiated in that the contract for sale was not produced at trial and the Transfer identified the transferee as “Tarabutus” and referred to “the Bank” selling as mortgagee.
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d) The sale of the Apartment from...
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...for possession or being lawfully in possession is misconceived. See for example the judgment of this court in Tarbutus Ltd. v. Hogan [2023] IECA 23. Data protection 55 . By grounds 8 and 13, Ms. Scanlan suggests that the judge erred in failing to acknowledge and consider her data claims. We......