Virginia Ross v Damien Harper, Link ASI Ltd, Bank of Ireland Mortgage Bank

JurisdictionIreland
JudgeMs. Justice Emily Egan
Judgment Date04 May 2022
Neutral Citation[2022] IEHC 255
CourtHigh Court
Docket Number[2021 1430 P]
Between
Virginia Ross
Plaintiff
and
Damien Harper, Link ASI Limited, Bank of Ireland Mortgage Bank
Defendants

[2022] IEHC 255

[2021 1430 P]

THE HIGH COURT

Interlocutory relief – Injunction – Sale of property – Plaintiff seeking an interlocutory injunction restraining the sale of a property pending the determination of the proceedings – Whether the plaintiff had made out a fair question to be tried

Facts: The first defendant, Mr Harper (the Receiver), was appointed by the second defendant, Link ASI Ltd (Link), over a property at Upper Ryninch, Ballina, Co. Mayo (the Ryninch property) on foot of a charge for present and future advances in favour of the third defendant, Bank of Ireland Mortgage Bank (the Bank) and transferred to Link on the 27th March, 2020. The plaintiff, Mrs Ross, commenced proceedings by plenary summons, issued on 5th March 2021. The plaintiff sought a range of reliefs against all three defendants including punitive, aggravated and exemplary damages for breach of contract, breach of duty of care, negligence and breach of fiduciary duty; orders setting aside the deeds of appointment of the Receiver, restraining the defendants from dealing with the Ryninch property, compelling the Registrar of Titles to enter a lis pendens as a burden on the property; and also a range of declaratory reliefs that the mortgage deed is void. The plaintiff sought a number of interlocutory reliefs including an injunction restraining the sale of the Ryninch property pending the determination of the proceedings. In the plenary summons, the plaintiff also sought certain orders against the Property Registration Authority in relation to the Ryninch property.

Held by the High Court (Egan J) that the plaintiff had made out a fair question to be tried and the defendants did not advance any serious argument to the contrary. Egan J held that no interlocutory relief was necessary as against the Bank; all of the Bank’s rights arising under the security documentation were vested in Link and the Bank had no power whatsoever to offer the Ryninch property for sale or to deal with it in any way. Therefore, the court declined to make any interlocutory order against the Bank restraining enforcement of the debt.

Egan J held that, provided the plaintiff gave the usual undertaking as to damages, the court would grant an interlocutory injunction restraining the Receiver and Link, their servants or agents, from offering the Ryninch property for sale, pending the trial of the proceedings.

Reliefs granted in part.

JUDGMENT of Ms. Justice Emily Egan delivered on the 4th day of May, 2022

Introduction and factual background
1

The plaintiff is the wife of Mr. Barnaby Ross (“Mr. Ross”). The first named defendant (“the Receiver”) was appointed by the second named defendant (“Link”) over a property at Upper Ryninch, Ballina, Co. Mayo (“the Ryninch property”) on foot of a charge for present and future advances in favour of the third named defendant (“the Bank”) and transferred to Link on the 27th March, 2020.

2

The plaintiff seeks a number of interlocutory reliefs including an injunction restraining the sale of the Ryninch property pending the determination of these proceedings. In the plenary summons, the plaintiff also seeks certain orders against the Property Registration Authority (“PRA”) in relation to the Ryninch property.

3

The plaintiff avers that in September, 1995 she moved to Ireland with Mr. Ross, her widowed mother and her young family. They purchased the Ryninch property in 1998, which was intended to be their new family home, and which was purchased with the sale proceeds of their previous family home in the United Kingdom. It appears that, subsequent to the purchase of the Ryninch property, issues arose regarding rights of way and boundaries (“the boundary issues”) which took some time to resolve, particularly as the solicitor initially instructed in relation to the conveyance retired from practice. This may explain why it was not until 15th February, 2011 that the plaintiff and Mr. Ross were registered as joint owners of the Ryninch property.

4

The plaintiff avers that in about 2006 Mr. Ross agreed to purchase three, buy-to-let properties, namely the Holiday Cottages at Kings Castle Cottages, Ballina, Killaloe, Co. Clare (“the Holiday Cottages”); that the purchase of these properties was financed by way of a loan in excess of €600,000 from the Bank; and that the plaintiff was unaware of the purchase of the Holiday Cottages and the loans.

5

The solicitor (“the Solicitor”) acting on behalf of Mr. Ross in connection with the purchase of the Holiday Cottages gave the Bank an undertaking dated 15th November, 2006 to put in place a first legal charge over the Holiday Cottages and also over the Ryninch property. A first legal charge was created over the Holiday Cottages but not initially over the Ryninch property. The plaintiff avers that she was unaware of all of the foregoing.

6

On the 23rd February, 2011 just eight days after the plaintiff and Mr. Ross were registered as joint owners of the Ryninch property, a charge for present and future advances in favour of the Bank was registered on the Folio. Notably, the charge was stated to affect only the interest of Mr. Ross in the Ryninch property. The plaintiff avers that at no time was she made aware that any charge was to affect to her family home, the Ryninch property.

7

It appears that Mr. Ross defaulted in the repayment of the loan and that a receiver was appointed over the Holiday Cottages in February of 2014. No receiver was appointed at this time over the Ryninch property.

8

The plaintiff avers that sometime after this (February 2011) the Solicitor wrote to Mr. Ross and herself stating that the boundary issues should be resolved so as to finalise the registration of title of the Ryninch property and ensure that the title was free from any encumbrances.

9

To that end, the plaintiff avers that in late August 2015 she and her husband were contacted by the Solicitor who arranged to meet them in the Castletroy Park Hotel in Limerick on 16th September, 2015. There was some urgency on the Solicitor's part to finalise the boundary issues; which the Solicitor insisted had to be resolved in early course in the couple's own interest. The plaintiff was not provided with any documentation prior to the meeting nor offered any opportunity to obtain independent legal advice on the documentation proffered for her signature at the meeting.

10

The plaintiff avers that on 16th September, 2015, she and Mr. Ross met the Solicitor in the conservatory of the Castletroy Park Hotel and discussed the matter over coffee. The Solicitor had a large file, labelled very carefully, which she consulted on a number of occasions in relation to the boundary issues. The plaintiff and her husband signed one or two documents regarding the boundary issues and also a one-page document, which the plaintiff understood had “to do with correct ownership and registration with the Land Registry”. The plaintiff avers that the Solicitor insisted that she sign this one page document, which she was not afforded time to study. The plaintiff says that she trusted the Solicitor, who she was assured was acting in their best interests.

11

Amongst the documents signed by the plaintiff at this meeting was a one-page housing loan mortgage in favour of the Bank. The document, which is exhibited in Link's affidavit is dated 16th September, 2015, identifies the mortgagee as the Bank, the mortgagor as Mr. Ross and the plaintiff, and the mortgaged property as the Ryninch property. The document states that the mortgage incorporates the Irish Building Banking Federation's general housing and loan mortgage conditions, a copy of which it states has been furnished to the mortgagor. The document states that, as security for the payment and discharge of “ the secured liabilities”, the mortgagor as the registered owner of registered land charges the mortgaged property. The document states “ This is an important legal document. You are strongly recommended to seek independent legal advice before signing it.” The document bears the signatures of both Mr. Ross and the plaintiff and is witnessed by the Solicitor. On the reverse side of the document is a Family Home Protection Act Declaration which was not signed.

12

The plaintiff avers that there was no reason for her to sign this mortgage document on 16th September, 2015 nor to incur any liabilities; that at the meeting there was no mention of any mortgage, nor of any monetary amounts whatsoever; that she was not familiar with this document nor given any explanation of its meaning; that at no time did the Solicitor inform her of the true relevance of her signature on the document, of the magnitude of the loss that she could incur or of the possibility of the loss of the Ryninch property, her family home; and that the Solicitor pressurised the plaintiff, and indeed “deceitfully induced” her, into signing the mortgage.

13

The plaintiff states that towards the end of the meeting she was asked to sign a further document which she remembers was referred to as a guarantee; that she immediately felt uneasy and was reluctant to sign it as a guarantee suggested responsibility on her part to pay something; that the Solicitor assured her that the guarantee was just a matter of “ crossing the t's and dotting the i's”; and that the Solicitor then informed the plaintiff that, in theory she should have third party legal advice although “this wasn't really necessary” and was a matter for herself. The plaintiff states that she declined to sign the guarantee.

14

On 23rd September, 2015 the charge on the Ryninch property in favour of the Bank was registered as a burden on the Folio

15

On 27th March, 2020 the Bank transferred all its interest in the loan and charge to Link.

Correspondence as between the plaintiff and the defendants
16

The...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT