Tyrrell v Gibney

JurisdictionIreland
JudgeMs. Justice Costello
Judgment Date24 June 2019
Neutral Citation[2019] IECA 168
Date24 June 2019
CourtCourt of Appeal (Ireland)
Docket NumberNeutral Citation Number: [2019] IECA 168 High Court Record No. 2017/1375P Record No. 2017/149

[2019] IECA 168

THE COURT OF APPEAL

Costello J.

Peart J.

Whelan J.

Costello J.

Neutral Citation Number: [2019] IECA 168

High Court Record No. 2017/1375P

Record No. 2017/149

BETWEEN/
KEN TYRRELL
PLAINTIFF/RESPONDENT
- AND–
DAMIAN GIBNEY

AND

IRENE GIBNEY
DEFENDANTS/APPELLANTS

Property – Possession – Appointment of receiver – Appellants seeking to appeal against the judgment and order granting the respondent orders for possession of properties comprised in three folios and ancillary relief – Whether the respondent had been validly appointed as receiver over the properties

Facts: The defendants/appellants, Mr and Mrs Gibney, appealed to the Court of Appeal against the judgment and order of Stewart J dated 21st March, 2017 granting the plaintiff/respondent, Mr Tyrrell, orders for possession of properties comprised in three folios and ancillary relief. Separately, she refused the appellants reliefs they had sought on a cross-motion issued on 22nd February, 2017. Four points emerged from the notice of appeal which was delivered by the appellants representing themselves without the aid of legal assistance. 1) their original borrowings from Irish Permanent plc and/or Permanent TSB were discharged by a promissory note from the People’s Mortgage Protection Vehicle sent to the bank in March 2014, redeemable in 2064; 2) there was no debt due by the appellants to Cheldon Property Finance DAC and therefore it was not entitled to appoint a receiver over the properties; 3) Mr Tyrrell was not validly appointed as receiver over the properties; 4) the affidavits sworn by Mr Tyrrell and on his behalf did not comply with the Rules of the Superior Courts and the Court of Appeal was asked to depart from its decision in Kearney v Bank of Scotland plc [2015] IECA 32. In addition, in submissions to the Court the appellants strongly argued that they were entitled to see the original unredacted documents relied upon by Mr Tyrrell in the proceedings.

Held by Costello J that Mr Tyrrell made out a strong case in the High Court that the three commercial loans secured on two commercial units and one residential buy-to-let unit were owned by Cheldon Property Finance Ltd and were in arrears and that he had been validly appointed as receiver over the properties. Costello J held that no arguments were advanced to dispute Mr Tyrrell’s submission that damages were not an adequate remedy in the circumstances of the case or that the balance of convenience favoured granting the reliefs he sought. Costello J held that there was undisputed evidence that the appellants were either withholding rent in respect of the units or that they were unoccupied and that the appellants were obstructing and not co-operating with the receivership for a period of a year. Costello J held that the trial judge was entitled, therefore, to grant the interlocutory orders she did and that the appellants had failed to raise any grounds on appeal why the Court should interfere with the order.

Costello J held that she would dismiss the appeal and affirm the order of the High Court.

Appeal dismissed.

JUDGMENT delivered on the 24th day of June, 2019 by Ms. Justice Costello
1

This is an appeal against the judgment and order of Stewart J. dated 21st March, 2017 granting the plaintiff/respondent (Mr. Tyrrell) orders for possession of properties comprised in three folios and ancillary relief. Separately, she refused the defendants/appellants (Mr. Gibney, Mrs. Gibney / the appellants) reliefs they had sought on a cross-motion issued on 22nd February, 2017.

Background
2

Mr. Tyrrell brought the proceedings as the receiver appointed by Deeds of Appointment dated 26th January, 2016 to three properties owned by Mr. & Mrs. Gibney. The properties are Unit 3D, Greencastle Road, Coolock Industrial Estate, Coolock, Dublin 5; 2 Pinebrook, Trim, County Meath; and Unit 5, Trim Retail Park, Navan Road, Trim, County Meath. The properties are comprised in Folio 196773F of the County of Dublin, Folio 10863F of the County of Meath and Folio 8245L of the County of Meath (‘the properties’). The appellants contested the validity of his appointment on a number of grounds and refused to cooperate with Mr. Tyrrell for a year so he instituted these proceedings and sought interlocutory injunctions against the appellants.

Order of the 21st March, 2017
3

The order recites that the Court was satisfied that there was due service of the motion on Mrs. Gibney in accordance with the terms of the order (for substituted service) dated 23rd February, 2017 and that it was appropriate to proceed with the motion notwithstanding the non-appearance of Mrs. Gibney. The order also records that the Court was satisfied that Mr. Tyrrell had been validly appointed as receiver over the lands and premises, the subject matter of the motion. The trial judge ordered the defendants and each of them, their servants or agents and all other persons having notice of the making of the order to forthwith pending the trial of the action deliver up to the plaintiff, his servants or agents possessions of the [properties] together with the key alarm codes, locks and all other security and access devices and equipment in respect of the [properties]. The defendants were also restrained from preventing impeding or obstructing the plaintiff from taking possession of or getting in and securing these [properties] and dealing with tenants in situ of the properties together with other ancillary reliefs.

Issues raised by the appellants
4

The first issue raised by the appellants relates to the service of the notice of motion upon Mrs. Gibney. The purpose of rules in relation to service is to ensure that a party has notice of an application to be made to court which may affect that party. It is to ensure that that party may then appear and be heard if they so wish at the hearing of the application. Once a party can be shown to be aware of the application and to have the papers upon which the application is to be moved, a court may be satisfied as to service. It is well established that if a party attends court in person that this cures any issues that may arise as to service. It is also well established that the court may proceed with an application in the absence of a party who may be affected by the outcome of the application once the court is satisfied that the party has been properly served with notice of the motion and the relevant papers. This may be done in accordance with the Rules of the Superior Courts or in the terms of any order authorising substituted service. It is also possible that a judge may deem good the service already actually effected on a party.

5

In this case, Mr. Gibney appeared in person at the hearing of the application and thus no issue as to service in respect of him can arise. Mrs. Gibney did not attend in court. However, on the 24th February, 2017 Gilligan J. made an order for substituted service on Mrs. Gibney of the documents by pre-paid ordinary post and by leaving the documents at Dunlever Lodge, Kildalkey Road, Trim, County Meath. That same order recited that Mr. Tyrrell's motion seeking interlocutory injunctions and the cross-motion of Mr. Gibney were to be listed on Tuesday, 21st March, 2017 and fixed a time for the further exchange of affidavits.

6

Mr. Stephen Sibbald swore an affidavit of service stating that the documents were served upon Mrs. Gibney by ordinary pre-paid post in accordance with the order of Gilligan J.. Mr. Pat Keegan, summon server, swore an affidavit stating that he left the documents addressed to Mrs. Gibney on the ground at the front door of the address specified in the order of Gilligan J. for substituted service. In the circumstances, the trial judge, Stewart J., was satisfied as to service and I see no error in her conclusion that Mrs. Gibney had properly been served in accordance with the terms of the order of Gilligan J.. That being so, the argument based upon the allegation that the trial judge erred in proceeding with the motion in the absence of Mrs. Gibney must be rejected.

7

The second argument advanced on behalf of the appellants was that this court must adjudicate upon a motion issued by Mr. Gibney on 7th July, 2017 seeking a trial of a point of law under Ord. 25, rr. 1 and 2 of the Rules of the Superior Courts. The appellants argued that this court ought to deal with this motion before dealing with their appeal against the order of Stewart J. of 21st March, 2017.

8

The motion seeks a trial of points of law by this Court on the following grounds:-

‘(1) The hearin (sic) case is NOT properly and/or lawfully and/or legally before the court and the respondent/plaintiff is critically and legally aware of same, and ought to be critically and legally aware of same.

(2) A declaratory order declaring and clarifying that as a point of law the plaintiff has critically and legally failed, refused and/or neglected to inform the court of his principals (sic) acceptance of payment in full rendering the respondents (sic) position and requirement for his position, the subject matter of the herein inter alia moot and void.

(3) A declaratory order declaring and clarifying that as a point of law and as a direct result of the respondent/plaintiff's failure, refusal and/or neglect pertaining to the critical and legal establishment of the bona fides of his appointment, inter alia, that the respondent/plaintiff has no standing whatsoever in the herein.

(4) A declaratory order declaring and clarifying that as a point of law and as a direct result of the respondent/plaintiff's failure, refusal and/or neglect pertaining to the critical and legal establishment of the bona fides of his appointment, inter alia, that the respondent/plaintiff had no legal rights and/or entitlements whatsoever to issue proceedings in the herein.

(5) A declaratory order declaring and clarifying that as a point of law and as a direct result of the...

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1 cases
  • Allied Irish Banks Plc v Bradley and Others
    • Ireland
    • High Court
    • 14 April 2023
    ...[2013] IEHC 316 (Birmingham J.), Lett & Co. Limited v. Wexford Borough Council [2016] 1 I.R. 418 (Supreme Court) and Tyrell v. Gibney [2019] IECA 168 (Court of Appeal). They also rely on dicta of Sir Robert Megarry V.C. in Malone v. Commissioner of Police of the Metropolis [1979] 2 WLR 700......

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