The Governor and Company of Bank of Ireland v Lyons

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMr. Justice Robert Haughton
Docket NumberRecord Number: 2018/399

[2020] IECA 352

THE COURT OF APPEAL (Civil)

Donnelly J.

Haughton J.

Collins J.

Record Number: 2018/399

BETWEEN/
THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND

AND

SIMON COYLE
PLAINTIFFS/RESPONDENTS
- AND -
JOHN LYONS, NOEL GRIFFIN

AND

BRIAN HADE
DEFENDANTS
- AND -
NIALL HADE
DEFENDANT/APPELLANT
JUDGMENT of Mr. Justice Robert Haughton delivered on the 10 th day of December 2020
1

This is an appeal by the fourth named defendant Niall Hade (“Mr. Hade”) only from an order of the High Court (Pilkington J.) made on 9 October 2018 granting various interlocutory orders to the first named respondent (“the Bank”) and the second named respondent (“the Receiver”) in respect of the property comprised in Folio 56604L of the Register of Leaseholders County Dublin, and known as 7A, Oakley Road, Ranelagh, in the City of Dublin (“the Property”).

2

In addition there is an application before this court on behalf of the Bank pursuant to Order 17, rule 4 and/or Order 15, rule 14 of the Rules of the Superior Courts 1986 for the substitution of Bank by Link ASI Limited, or alternatively the joinder of Link ASI Limited as a plaintiff in the within proceedings.

3

The history to these proceedings is that certain loans were made by ICS Building Society to the first three named defendants in 2002 and 2006, secured by a Mortgage and Charge executed by those defendants on 24 April 2003 (“the Mortgage”) in respect of the Property, and also over the property described in Folio 56605L which also forms party of 7A, Oakley Road. The Mortgage was duly registered as a burden on both folios on 23 May 2003. Clause 5.01(k) of the Mortgage contained a covenant on the part of the mortgagors –

“(k) Not to convey, transfer, assign, demise, lease, let, licence or part with the possession of the Mortgaged Property or any part thereof or any interest therein without the prior written consent from the Society”.

4

By transfer effected by Statutory Instrument 257 of 2014 made under the Central Bank Act, 1971 as amended, the liabilities of the first, second and third named defendants to ICS Building Society and the benefit of the Mortgage were transferred to the Bank.

5

By deed of appointment dated 3 July 2015 the Bank appointed Mr. Coyle as Receiver over the Property.

6

On or about 1 June 2015 the first, second and third named defendants purported to enter into a Lease Agreement for the property with Mr. Hade, at an initial rent of €42,000 per annum, being a rate of €3,500 per month, for a term of two years and nine months. Mr. Hade is in occupation of the property, and has since that time run it as a hostel for the homeless under ongoing contractual arrangements with Dublin City Council.

7

The plenary summons herein was issued on 16 July 2018 and in it the respondents seek possession of the property, interlocutory and permanent injunctions and certain declarations, and damages. On 17 July 2018 the respondents caused a Notice of Motion to issue seeking interlocutory injunctions, and ancillary orders in relation to the furnishing of accounts of rents and deposits and books and accounts relating to the property, grounded on an affidavit of Ms. Hilary Larkin sworn on 16 July 2018. Ms. Larkin is a director of Mazars, the firm in which the Receiver was formerly a joint managing partner, and in which he was, at the time she swore her affidavit, a consultant. A verifying affidavit was also sworn by Ms. Marie Carey on behalf of the Bank.

8

The first, second and third named defendants did not enter any appearance and did not oppose the application for interlocutory orders.

9

Mr. Hade however did oppose the application and swore a short Replying Affidavit dated 8 October 2018. In paragraph 2 he takes a technical locus standi objection to the Receiver on the basis that he is no longer in the employment of Mazars, and he objects to Ms. Larkin swearing her grounding affidavit. In para. 3 he asserts There is no serious question to be tried in that there is a valid lease in being, and has been agreed by the Receiver. A copy of that lease is exhibited by him at “NH 1”. At para. 4, in response to Ms. Larkin's averments, he denies that the Receiver has been denied access to the property. At para. 5 he asserts that he has been named as “Niall Hayes” in the proceedings “ in order to mislead and confuse the court”. In para. 6 he asserts that the balance of convenience rests with him as the Receiver has never been denied access, and he asserts that damages are not an adequate remedy if the court should ultimately determine in favour of Mazars – by which it is reasonably clear that he meant to aver that damages would be an adequate remedy if the plaintiffs were ultimately to succeed.

10

It is the case that Mr. Hade was named in the proceedings initially as “Niall Hayes”. This is not surprising as the copy lease exhibited by Mr. Hade and purportedly made on 1 June 2015 is between the first, second and third named defendants as landlord and “ Niall Hayes of 18A Oldcourt Cottages Dublin 24” as tenant.

11

In his affidavit Mr. Hade exhibits certain correspondence and emails with Mazars, which form the basis of his assertion/argument that, notwithstanding Clause 5.01(k) of the Mortgage, the respondents have approbated the purported lease and are bound by it.

12

The application for interlocutory reliefs came on for hearing before the High Court on 9 th October, 2018. The first, second and third named defendants were not present or represented, although the court in its order notes a letter from the first named defendant in which he appeared to be consenting to orders that the court might make. Mr. Hade was present, and applied to the court for an adjournment. The Transcript at p. 2 indicates that he explained to the trial judge that the Property was an emergency home, it's a hostel and its based in Ranelagh and there's fourteen people who are there. They're clients of Dublin City Council. There's also two staff and myself. So, there are seventeen people in all involved in this particular building. I am there since 2015…”. He sought the adjournment …just to appoint a legal representative, a barrister, because I didn't expect it to come up today for hearing….

13

The trial judge then received Mr. Hade's affidavit, and allowed it to be filed in court. That affidavit was made in the name of “Niall Hade”, and the trial judge then made an amendment to the title of the proceedings, substituting “Hade” for “Hayes”. The trial judge then addressed the adjournment application, and having listened to both parties refused the application for an adjournment.

14

Having heard the application the trial judge made the following orders: -

“(1) The Plaintiff be at liberty to amend the title of the within proceedings in respect of the fourth named Defendant to read Niall Hade in lieu of Niall Hayes.

(2) The Defendants’ their servants and/or agents and any other person having notice of the making of this Order be restrained from interfering with the function and office of the second named plaintiff as receiver of the property listed in the Schedule hereto, pending the determination of the within proceedings.

(3) The first, second and third defendants, their servants and/or agents, or any other person having notice of the making of this Order be restrained from trespassing on or entering upon or otherwise interfering with the property listed in the Schedule hereto pending the determination of the within proceedings.

(4) The Defendants and each of them be directed to furnish an account of all rents and deposits to include payments from Dublin City Council received by them since 3 July 2015 in respect of the property listed in the Schedule hereto and to pay any such rents and deposits to the second named plaintiff within 14 days from the date hereof.

(5) The Defendants and each of them be directed to deliver up to the second named plaintiff herein all books and records held by each of them relating to the properties listed in the Schedule hereto, including leases and licence agreements within 14 days from the date hereof.

(6) The fourth named defendant to pay to the second named plaintiff, by way of mesne rates a sum of €3,500 per month from the date of this Order pending the determination of the within proceedings.

(7) Reserved costs.

and the Court notes the undertaking of the fourth named defendant to abide by the terms of this Order.”

15

It is not in dispute that the intention of this order was not to exclude Mr. Hade from occupation of the property and from running it as a hostel for the homeless, pending the determination of the proceedings, on the basis that pending trial he paid to the Receiver a sum of €3,500 per month in respect of his occupation. Contrary to the wording in para. 4 of the Order as initially perfected, it was not intended that in addition Mr. Hade would have to pay to the Receiver monies received by him from Dublin City Council. That this is so is apparent from a reading of pages 40-42 of the Transcript of the hearing in the High Court.

16

Mr. Hade lodged a Notice of Appeal on 19 October 2018. It is not necessary to recite all the Grounds raised, because not all of them were pursued, but it should be noted that at Ground (c) Mr. Hade expressly raises the error in para. 4 of the Order under appeal, and at Ground (g) he pleads that the trial judge erred in ordering him to pay over all monies received from Dublin City Council since 3 July 2015 to the receiver.

17

In order to correct the error in the order, application was made on behalf of the Respondents to Pilkington J. on 15 November 2018, and pursuant to O. 28, r. 11RSC the Order at para. 4 was amended under the ‘slip rule’ to read: -

4. The Defendants and each of them be directed to furnish an account of all rents and deposits to include payments from Dublin City Council received by them since 3 July, 2015 in respect of the...

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