Ulster Bank Ireland DAC v Rattigan and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 25 May 2023
• Neutral Citation: [2023] IEHC 284
• Court: High Court
• Docket Number: 2020 No. 289 SP

Between

Ulster Bank Ireland DAC

Plaintiff

and

Jarlath Rattigan

Elizabeth Rattigan

Defendants

[2023] IEHC 284

2020 No. 289 SP

THE HIGH COURT

Appearances

Grainne Fahy for the plaintiff instructed by McKeever Rowan Solicitors

The defendants appeared as litigants in person

JUDGMENT of Mr. Justice Garrett Simons delivered on 25 May 2023

INTRODUCTION

1 This judgment is delivered in respect of an application by Ulster Bank for a well charging order and an order for sale. The application relates to the lands comprised in Folio 60665F, County Meath. The application is advanced on two alternative bases as follows. The first basis is that the defendants are indebted to Ulster Bank pursuant to a guarantee. The indebtedness is said to have been secured by way of an equitable mortgage over the lands. This equitable mortgage has since been converted into a registered lien pursuant to Section 73 (3) of the Registration of Deeds and Title Act 2006. The second basis is that Ulster Bank obtained judgment against the defendants on 17 November 2008 in the sum of €230,735.40 and this judgment has since been registered as a judgment mortgage against the defendants' interest in the lands. This second basis is advanced as a fallback position. Ulster Bank's primary submission is that it is entitled to enforce the registered lien. Ulster Bank considers that reliance on the registered lien is more advantageous to it in terms of establishing priority over other incumbrancers. A number of judgment mortgages by other parties have been registered against the lands.

2 The defendants seek to resist the application chiefly on the grounds that Ulster Bank is in breach of an agreement allegedly reached between the parties in late December 2011 or early 2012. It is said that the intention at that time had been that another property owned by the defendants, namely an apartment in County Mayo; was to be surrendered to Ulster Bank and the net proceeds of sale would be used to discharge the debt owing to Ulster Bank in respect of the guarantee. The gist of the argument appears to be that had Ulster Bank complied with this supposed agreement, then the defendants would have been better placed to pay down the debt.

3 The shorthand terms “ the Meath lands” and “ the Mayo apartment” will be used in this judgment when referring to the two respective properties.

FACTUAL BACKGROUND

4 The defendants executed a guarantee on 23 June 2004 in favour of Ulster Bank in respect of the debts of a company known as Fenestech Ltd. The total amount recoverable under the guarantee was not to exceed a principal sum of €250,000.

5 The following year, the defendants created an equitable mortgage over the Meath lands in favour of Ulster Bank on 19 April 2005. This was done by way of an undertaking by the defendants' solicitors to hold the land certificate in respect of the lands in trust for Ulster Bank. The equitable mortgage was stated to be as security for all the defendants' liabilities to Ulster Bank howsoever arising. The equitable mortgage thus extended to the (potential) indebtedness of the defendants pursuant to the guarantee.

6 Ulster Bank made a demand for payment pursuant to the guarantee on 17 May 2007. This demand was not met. Thereafter, Ulster Bank instituted summary summons proceedings against the defendants on 12 March 2008. Ulster Bank obtained judgment in default of appearance on 17 November 2008 in the sum of €230,735.40. This judgment remains unsatisfied. (To date, a single payment of €500 has been made by the defendants).

7 In accordance with the provisions of Section 73 (3) of the Registration of Deeds and Title Act 2006, Ulster Bank's interest under the equitable mortgage was converted into a registered lien on 7 October 2009. Ulster Bank now seeks to enforce this statutory lien by way of a well charging order and an order for sale. See, generally, Promontoria (Oyster) DAC v. Greene [2021] IECA 93.

8 Turning now to the Mayo apartment, the defendants had acquired a leasehold interest of 999 years in the apartment on 24 September 2000. It is apparent from the folio that Ulster Bank held a charge over the defendants' interest in the Mayo apartment. This charge was registered on the folio on 26 October 2000. It appears, although this is not entirely clear from the papers, that the apartment had been purchased with the benefit of a loan from Ulster Bank. The loan appears to have been for an amount of approximately IRL£67,000. As of 10 June 2020, the principal and interest came to a sum of €101,653.44. (See letter dated 12 June 2020 to the defendants from Promontoria Scariff DAC). This debt is separate and distinct from the debt owed by the defendants pursuant to the guarantee.

9 The defendants allege that they had reached an agreement with Ulster Bank in December 2011 or early 2012 whereby the Mayo apartment was to be surrendered to Ulster Bank. The alleged agreement is said to be evidenced by the following exchange of correspondence. The solicitors then acting on behalf of the defendants, Dillon Geraghty & Co., had written to Ulster Bank's solicitors on 28 September 2011. The letter stated as follows:

“In an effort to be reasonable, our client suggests that we propose to you that the apartment in Mayo be transferred to the Ulster Bank to do with it what your client wishes. If this is something of interest to your client, perhaps you would be good enough to revert to us. If your client has any other suggestion in relation to the apartment,...