Tyrrell v Wright

• Jurisdiction: Ireland
• Judge: Ms. Justice Máire R. Whelan
• Judgment Date: 28 September 2018
• Neutral Citation: [2018] IECA 295
• Date: 28 September 2018
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2018] IECA 295

BETWEEN

KEN TYRRELL

PLAINTIFF/RESPONDENT

AND

DAVID WRIGHT

AND

ROPE WALK CAR PARK LIMITED

DEFENDANTS/APPELLANTS

[2018] IECA 295

Whelan J.

Irvine J.

Hogan J.

Whelan J.

Neutral Citation Number: [2018] IECA 295

[Appeal number 2017/113]

THE COURT OF APPEAL

Interlocutory orders – Expedited appeal – Receiver – Appellants seeking an order setting aside the judgment and orders of the High Court – Whether the matter should be remitted back to the High Court for a full plenary hearing

Facts: The appellants, Mr Wright and Rope Walk Car Park Ltd, appealed to the Court of Appeal from a judgment of Costello J in the High Court delivered on 17th February 2017 wherein she determined the entitlement of the respondent, Mr Tyrrell (the receiver), to certain mandatory interlocutory orders against the appellants. Consequential orders were made on 24th February 2017 and the same were perfected on 3rd March 2017. Notice of expedited appeal was filed on behalf of the appellants on 14th March 2017. It identified nine grounds of appeal. It sought an order setting aside the judgment and orders of the High Court and an order refusing the reliefs sought by the receiver. It further sought that the matter be remitted back to the High Court for a full plenary hearing. In addition to the grounds of appeal identified in the notice of expedited appeal, Mr Wright referred to additional grounds which he sought to argue before the Court notwithstanding that no leave was obtained to amend the original notice of appeal.

Held by Whelan J that none of the grounds of appeal identified in the notice of appeal had been established. Whelan J also held that no stateable ground of appeal had been identified amongst the various supplemental affidavits sworn by Mr Wright.

Whelan J held that she would dismiss the appeal on all grounds.

Appeal dismissed.

JUDGMENT of Ms. Justice Máire R. Whelan delivered on the 28th day of September 2018

1 This is an appeal from a judgment of Costello J. in the High Court delivered on 17th February 2017 wherein she determined the entitlement of the respondent (hereinafter 'the Receiver') to certain mandatory interlocutory orders against the appellants. Consequential orders were made on 24th February 2017. Same were perfected on 3rd March 2017.

The facts

2 The respondent was appointed as Receiver by Launceston Property Finance DAC (hereafter 'Launceston') on 22nd August 2016 over three mortgaged properties of the first-named appellant, Mr. David Wright (hereinafter 'Mr. Wright') who describes himself as a private businessman and investor. Mr. Wright's indebtedness arose from a loan agreement with Anglo Irish Bank on or about 3rd November 2006 in respect of the sum of €1,820,000 secured over three properties as hereinafter set out. In 2006 Mr. Wright granted Anglo a first legal mortgage and charge over the properties as security for the said advance. The facilities were renewed from time to time and ultimately expired on 31st December 2012 without having been repaid. Launceston Property Finance DAC (hereinafter 'Launceston') acquired the said loans in the course of the special liquidation of IBRC. It is the registered owner of the relevant charges and securities. On 26th July 2016, Launceston served a notice of demand on Mr. Wright calling for immediate payment of the sum of €2,603,732.40 as due and owing pursuant to the mortgage agreement.

3 The three secured properties are known as 1A Swan Lake, Chapelizod Road, Islandbridge, Dublin 8 (hereinafter '1A Swan Lake'), 1B Swan Lake, Chapelizod Road, Islandbridge, Dublin 8 (hereinafter '1B Swan Lake') and 1 Summer Cove, Rosslare, Co. Wexford (hereinafter 'Summer Cove'). The latter property is comprised in folio 48025F of the Register of Freeholders, Co. Wexford. The Receiver sought vacant possession of the three secured properties.

Two motions

4 The Receiver, following his appointment, instituted proceedings on 12th October 2016 seeking an order requiring the second-named appellant, a limited liability company, to forthwith surrender vacant possession of Summer Cove to him. He further sought a declaration that any purported leases or licences of the three properties be declared void and of no legal effect.

5 Two motions were issued on behalf of the Receiver. The first issued on 12th October 2016. The reliefs therein sought relevant to this appeal include an order requiring Mr. Wright and all other persons having notice of the said order to surrender forthwith vacant possession of 1B Swan Lake to him. A similar order was sought in respect of Summer Cove and certain prohibitory injunctions were sought restraining Mr. Wright, his servants and/or agents from impeding or obstructing the Receiver in respect of the property 1A Swan Lake. In a second notice of motion the Receiver sought orders pursuant to s. 123 of the Land and Conveyancing Law Reform Act 2009 and/or pursuant to the inherent jurisdiction of the Court vacating lites pendentes registered by Ms. Mary Moore and Mrs. Bernadette Wright against any of the three properties. Ms. Moore and Mrs. Wright are, respectively, the partner and mother of Mr. Wright. This appeal is concerned only with the first motion.

The hearing

6 The motions were heard before the High Court on 18th and 19th January 2017. The appellants were represented by counsel including senior counsel. At the conclusion of the hearing, the learned trial judge reserved judgment which she delivered on 17th February 2017.

7 At the hearing before the High Court in January 2017 Mr. Wright opposed the Receiver's applications on two central grounds. Firstly, it was argued that the Receiver was estopped by reason of representations made and assurances given by the mortgagee Launceston Property Finance DAC and its agents – particularly Pepper Assets Servicing (hereafter 'Pepper') - upon which Mr. Wright claimed to have relied. It was further contended on his behalf that one of the properties, 1B Swan Lake, constituted Mr. Wright's principal private residence and as such was governed by the provisions of the operative Code of Conduct for Mortgage Arrears 2013 which then applied pursuant to s. 117 of the Central Bank Act 1989. The Code sets forth the manner in which mortgage lenders and mortgagees are obliged to treat borrowers confronted with mortgage arrears.

The judgment

8 The judgment of the trial judge is detailed and considered. She noted that Mr. Wright advanced two key arguments which he contended entitled him to remain in possession of the property at 1B Swan Lake; estoppel and non-compliance with the MARP code of conduct.

Estoppel

9 Mr. Wright argued that the respondent was estopped from seeking possession of the properties at Swan Lake on the basis of representations made and assurances given by Launceston, and/or its agent Pepper, in 2015 upon which he claimed to have relied. He stated that he had progressed at his own expense an application for planning permission on the basis of a common understanding which had been originally reached with IBRC -and subsequently Pepper- that he would be permitted to develop the two Swan Lake properties to maximise the realisable value on a subsequent sale and that he could retain one of them as his principle private residence.

10 He argued that in reliance on those assurances and the money he expended in securing planning permission Launceston was estopped from purporting to enforce its security.

11 In her judgment, the trial judge made a number of factual findings in relation to the circumstances surrounding this alleged promise. She found no evidence of any representation having been given by Pepper to the effect that Mr. Wright could retain one of the properties at Swan Lake as his principle private residence or any agreement to accept a lesser sum in full satisfaction of the total outstanding debt in the manner contended. She found that there was no identification by Mr. Wright even as to which of the two Swan Lake properties was to be retained for this alleged purpose.

12 She found that nothing had been done by Mr. Wright between the grant of planning permission in September 2015 and late 2016 to progress matters other than service of a notice to quit on a tenant at 1A Swan Lake in June 2016.

13 The trial judge found that the Mr. Wright failed to meet the legal test laid down in the judgment in Doran v. Thompson and Sons Limited [1978] I.R. 223 in order to sustain his estoppel argument viz. that a clear and unambiguous promise or assurance made by the representatives of Launceston to him. It followed that this defence to the Receiver's claim, could not displace the strong case made out by him that he was likely to succeed at the hearing of the action.

14 The trial judge opined that even if she was wrong in this conclusion, the estoppel contended for by Mr. Wright was of a temporary nature only. As such it was open to Launceston to resile from such a promise on giving reasonable notice.

15 In this context the judge found that an email of 30th March 2016 to Mr. Wright made clear that Pepper and Launceston would no longer afford the him the opportunity to carry out works based on the 2015 planning permission. She concluded that any concession/representation had effectively and validly been withdrawn.

Mortgage Arrears Resolution Process - MARP

16 Mr. Wright contended that since April 2015, 1B Swan Lake has been his principal private residence. As such he asserted entitlement to the benefit of the Code of Conduct on Mortgage Arrears (hereafter 'CCMA'). He argued that since Launceston had not complied with the provisions of the Code they were not entitled to recover possession of this property.

17 The CCMA regulates the activities of mortgage providers via MARP where a mortgage is secured by a borrower's primary residence.

18 The Receiver denied the applicability of MARP to these loans on four distinct grounds. First, he contended...