Van Dessel v Carty

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Allen
• Judgment Date: 12 November 2018
• Neutral Citation: [2018] IEHC 626
• Docket Number: [2016 No. 8209 P.]
• Date: 12 November 2018

BETWEEN

DAVID VAN DESSEL

PLAINTIFF

AND

PAT CARTY

DEFENDANT

[2018] IEHC 626

Allen J.

[2016 No. 8209 P.]

THE HIGH COURT

Committal – Contempt of court – Receivership property – Plaintiff seeking an order for the attachment and committal of the defendant – Whether the defendant was in breach of an order of the High Court

Facts: The plaintiff, Mr Van Dessel, applied to the High Court by notice of motion issued on 28th March, 2018 and originally returnable for 30th April, 2018 for an order pursuant to O. 44 of the Rules of the Superior Courts and the inherent jurisdiction of the court for the attachment and committal of the defendant, Mr Carty, for his alleged failure to comply with an order of the High Court (Gilligan J) made on 16th March, 2017. By that order the defendant, his servants and agents and any other person having notice of the order were restrained from: 1) impeding and/or obstructing the plaintiff from taking possession of the receivership property, as described in the schedule thereto, and/or collecting the rents associated with same; 2) interfering with the functions and office of the receiver in respect of the receivership property; 3) impeding and/or obstructing the plaintiff in changing the locks on buildings on the receivership property and/or otherwise taking steps to secure the said property; 4) trespassing on or entering upon or otherwise interfering with the receivership property; and 5) purporting to collect rents or other payments in respect of the receivership property or holding himself out as the party entitled to let the receivership property.

Held by Allen J that he was satisfied beyond reasonable doubt that the defendant was, since 4th May, 2017, in breach of paras. 1, 2, 3 and 4 of the order, and in contempt of the court, by: 1) impeding and/or obstructing the plaintiff from taking possession of the receivership property, as described in the schedule thereto; 2) interfering with the functions and office of the receiver in respect of the receivership property; 3) impeding and/or obstructing the plaintiff in changing the locks on buildings on the receivership property and/or otherwise taking steps to secure the said property; and 4) trespassing on or entering upon or otherwise interfering with the receivership property.

Allen J held that there would be an order that the plaintiff be at liberty to issue an order of committal directed to the Commissioner and members of the Garda Síochána against the defendant to arrest him and thereupon to lodge him in Mountjoy prison there to be detained until he purge his said contempt and is discharged pursuant to further order of the court.

Application granted.

JUDGMENT of Mr. Justice Allen delivered on the 12 th day of November, 2018

1 This is an application by notice of motion issued on 28th March, 2018 and originally returnable for 30th April, 2018 for an order pursuant to O. 44 of the Rules of the Superior Courts and the inherent jurisdiction of the court for the attachment and committal of the defendant for his alleged failure to comply with an order of the High Court (Gilligan J.) made on 16th March, 2017.

2 By that order the defendant, his servants and agents and any other person having notice of the order were restrained from:

1. Impeding and/or obstructing the plaintiff from taking possession of the receivership property, as described in the schedule thereto, and/or collecting the rents associated with same;

2. Interfering with the functions and office of the receiver in respect of the receivership property;

3. Impeding and/or obstructing the plaintiff in changing the locks on buildings on the receivership property and/or otherwise taking steps to secure the said property;

4. Trespassing on or entering upon or otherwise interfering with the receivership property;

5. Purporting to collect rents or other payments in respect of the receivership property or holding himself out as the party entitled to let the receivership property.

3 The receivership property described in the schedule to the order is:

1. ALL THAT AND THOSE the lands contained within Folio 6095 of the Register of Freeholders County of Wexford containing 52 acres or thereabouts and more commonly known as Rathduff, Rathnure, County Wexford;

2. ALL THAT AND THOSE the lands contained within Folio 46658F of the Register of Freeholders County of Wexford;

3. ALL THAT AND THOSE the lands contained within Folio 46661F of the Register of Freeholders County of Wexford.

4 The circumstances in which the order of 16th March, 2017 came to be made are carefully chronicled in an affidavit of the plaintiff sworn on 23rd March, 2018, on which this application is grounded.

5 By notice of motion issued on 13th September, 2016 and originally returnable for 7th November, 2016 the plaintiff applied to the High Court for nine orders, including the orders eventually made by Gilligan J.

6 That application was grounded on an affidavit of the plaintiff sworn on 12th September, 2016 and supported by an affidavit of Jonathan Hanley of Ennis Property Finance DAC of 7th September, 2016.

7 The plaintiff's case was that he was appointed by Bank of Scotland plc, as successor in title to Bank of Scotland (Ireland) Ltd, by deed of appointment dated 5th September, 2013 in pursuance of the powers contained in mortgages and charges dated 20th December, 2004 and 6th July, 2005, each made between the defendant and Bank of Scotland (Ireland) Ltd.

8 The affidavit of Jonathan Hanley showed that Bank of Scotland (Ireland) Ltd had extended a number of loan facilities to the defendant, which facilities were secured inter alia by charges registered on Folio 6095 County Wexford which was later divided into three folios, or out of which two new folios were carved, the three folios being those described in the schedule to the notice of motion, and ultimately the order of Gilligan J.

9 By cross-border merger pursuant to the European Communities (Cross-Border Mergers) Regulations, 2008 of Ireland and the Companies (Cross-Border Mergers) Regulations, 2007 of the United Kingdom, approved by the High Court on 22nd October, 2010 and by the Scottish Court of Session on 10th December, 2010, all of the assets and liabilities of Bank of Scotland (Ireland) Ltd transferred to Bank of Scotland plc on 31st December, 2010.

10 By purchase deed dated 29th November, 2014 Bank of Scotland plc agreed to transfer to ELQ Investors II Ltd certain loan facilities, together with all security and ancillary rights and claims related to those facilities, including the defendant's loans and the security held in connection with them. Pursuant to a deed of novation dated 12th December, 2014 between Bank of Scotland plc, ELQ Investors II Ltd and Ennis Property Finance Ltd, all of the rights, title, interest, obligations and liabilities of ELQ Investors II Ltd under the purchase deed were novated and transferred to Ennis Property Finance Ltd and on 20th April, 2015 Bank of Scotland plc executed a deed of assignment to Ennis Property Finance Ltd.

11 In his affidavit of 12th September, 2016 the plaintiff summarised his correspondence with the defendant between the time of his appointment and shortly before the date of issue of the application to court and set out his case as to why he urged the court to make the order sought.

12 The summons server instructed by the plaintiff in September 2016 to serve the motion papers on the defendant encountered difficulties and on 10th October, 2016 the High Court (Heneghan J.) made an order for substituted service of the plenary summons and of any further documents required to be personally served on the defendant by ordinary prepaid post on the defendant at his address in Enniscorthy, County Wexford. That order provided that the notice of motion should be served six weeks prior to the date of listing.

13 The injunction motion papers and plenary summons were sent to the defendant by post on 13th October, 2016 but in circumstances where the motion had a return date for 7th November, 2016 the plaintiff's solicitors, in the covering letter, advised the defendant that the application would be adjourned to 24th November, 2016 to ensure that he had the papers six weeks in advance.

14 On 24th November, 2016 the defendant was called at the sitting of the court but did not appear. Gilligan J. having been told of the terms of the order of Heneghan J. made a further order for substituted service of the plenary summons, the motion papers and of any further documents required to be served on the defendant by ordinary prepaid post at the same address in County Wexford and by email to the defendant's specified email address, and adjourned the injunction application for hearing on 8th December, 2016. The papers were served in accordance with the order of Gilligan J.

15 On 8th December, 2016 the defendant was called at the sitting of the court. He did not appear but when the application was taken up by Gilligan J. at midday, a Mr. Simon Kavanagh purported to appear on behalf of the defendant. Mr. Kavanagh was heard to say that the defendant was seeking an adjournment as the papers had only been received by him on 30th November, 2016. Mr. Kavanagh suggested that the defendant had a defence and needed time. Notwithstanding opposition by counsel on behalf of the plaintiff, the court adjourned the application to 19th January, 2017, with a direction that the defendant file any affidavit within fourteen days.

16 The defendant did not comply with the time limit prescribed by the court but on 16th January, 2017 filed and served a replying affidavit. On 19th January, 2017 the motion was adjourned to 16th February, 2017. Further affidavits on behalf of the plaintiff were sworn on 13th and 14th February, 2017 and served on the defendant by post and email and on 16th February, 2017 the injunction application was further adjourned, at the request of the defendant, for four...