Wallace v Kershaw
| Jurisdiction | Ireland |
| Judge | Mr. Justice Allen |
| Judgment Date | 04 June 2019 |
| Neutral Citation | [2019] IEHC 382 |
| Court | High Court |
| Docket Number | [2018 No. 6128 P.] |
| Date | 04 June 2019 |
[2019] IEHC 382
THE HIGH COURT
Allen J.
[2018 No. 6128 P.]
Interlocutory injunction – Trespass – Residential property – Plaintiff seeking an interlocutory injunction restraining trespass on a residential property over which he was appointed receiver – Whether the plaintiff was entitled to the order which he sought
Facts: The plaintiff, Mr Wallace, applied to the High Court for an interlocutory injunction restraining trespass on a residential property over which he was appointed receiver in 2013. The defendant, Mr Kershaw, made much of the very long delay between the appointment of the plaintiff in 2013 and the institution of these proceedings in 2018. The matter, he urged, was not urgent and not appropriate for an interlocutory application.
Held by Allen J that the property the subject of these proceedings was the subject of a mortgage in favour of Promontonia (Arrow) Ltd; that mortgage was in arrears. Allen J held that the mortgagee, and the plaintiff on its behalf, was entitled to possession to realise the security. Allen J held that there was no issue to go to trial.
Allen J held that the plaintiff was entitled to the order which he sought, as of right.
Application granted.
This is an application by a receiver for an interlocutory injunction restraining trespass on a residential property over which he was appointed receiver in 2013.
By agreement in writing dated 9th May, 2003 made between HSS Limited as vendor and John Meade as purchaser, HSS Limited agreed to sell, and Mr. Meade to purchase, a serviced site at 15 Coldwater Lakes, Saggart, Co. Dublin, for €317,434.52.
The sale and purchase was completed by deed of conveyance dated 14th July, 2003. Part or all of the money used by Mr. Meade to buy the site was borrowed from Anglo Irish Bank Corporation plc (‘ Anglo’) and by deed of mortgage made 17th July, 2003 Mr. Meade mortgaged the site to Anglo to secure all sums then or at any time thereafter to become due or owing by Mr. Meade to Anglo.
Mr. Meade's facilities with Anglo were refinanced from time to time, most recently on 31st January, 2009 and 3rd September, 2009, when Anglo provided additional finance. It was then expressly agreed that the security for Mr. Meade's liabilities would include the bank's first legal charge over what was then described as a residential unit at Coldwater Lakes, Citywest, Co. Dublin.
Mr. Meade's loans and the security held for them were transferred to National Asset Loan Management Limited (‘ NALM’). By deed of appointment dated 31st May, 2013 Mr. Kieran Wallace was appointed as statutory receiver over a number of Mr. Meade's assets, including the house at Coldwater Lakes.
By a global assignment deed and a deed of conveyance and assignment, both dated 11th December, 2015, Mr. Meade's loans and the security held in connection with them were assigned and transferred to Promontoria (Arrow) Limited.
By deed of novation dated 11th December, 2015 made between NALM and Promontoria (Arrow) Limited and Mr. Wallace, Promontoria (Arrow) Limited was substituted in place of NALM, and Mr. Wallace agreed to perform and discharge all liabilities and obligations as if Promontoria (Arrow) Limited were the original party to the deed of appointment.
Upon his appointment by NALM, Mr. Wallace wrote to ‘ The tenant, 15 Coldwater Lakes, Saggart’ asking that the rent for the property be paid to him and for a copy of the most recent lease.
By letter dated 2nd September, 2013 O'Shea Legal solicitors replied on behalf of Mr. Philip Kershaw, the defendant, and his family. It was said that Mr. Kershaw was not in fact a tenant but a part owner of the property, having substantially financed the construction of the property with Mr. Meade. Mr. Kershaw was said to have invested in excess of €600,000 in the project and to have retained title to what was asserted to be his asset. It was said that Mr. Meade had agreed to sell his interest in the development to Mr. Kershaw and that O'Shea Legal were seeking further instructions as to the terms of that agreement.
Mr. Wallace instructed Byrne Wallace solicitors to correspond with O'Shea Legal. In a letter of 23rd April, 2014 O'Shea Legal, on behalf of Mr. Kershaw, repeated his claim to have spent in excess of €600,000 on the construction of the property and claimed that Mr. Kershaw had an agreement with Mr. Meade for a transfer of title ‘ in consideration of a sum of money to compensate him for the value of the site’. Enclosed with that letter was a list of payments to contractors amounting in all to €618,788.52, and a valuation report which put a value on the house as of 16th October, 2013 of €475,000. The list of payments did not show when or by whom the payments were allegedly made.
By letter dated 11th June, 2014, O'Shea Legal conveyed to Byrne Wallace an offer by the defendant to purchase the property for €255,000. There was no evidence of any response to that offer on behalf of Mr. Wallace and the correspondence petered out.
Following the novation of his appointment by Promontoria (Arrow) Limited, Mr. Wallace instructed O'Brien Lynham solicitors, who wrote to O'Shea Legal on 26th April, 2018 demanding that Mr. Kershaw deliver up possession. There appears to have been no answer to that letter and on 6th July, 2018 Mr. Wallace issued a plenary summons claiming an injunction restraining trespass. On the same day, a motion for an interlocutory relief was issued, originally returnable for the 15th October, 2018.
On 14th November, 2018 Mr. Kershaw filed the first of three affidavits in response to the claim. He then swore that his father, Mr. Alan Kershaw, had purchased the property from Mr. Meade and Mr. Gerry May. Mr. May was said to have been Mr. Meade's silent partner. Mr. Kershaw swore that the purchase price of the site was €380,000. There were no solicitors involved. Mr. Kershaw deposed that there had been no suggestion that the property was subject to a mortgage until 2013, when he first received correspondence from Mr. Wallace. Mr. Kershaw exhibited a copy of a bank draft for €190,000 made payable to Mr. May. That draft was dated 26th November, 2002 and so predated by some months Mr. Meade's contract to buy the site.
Mr. Kershaw, in his first affidavit, said that Mr. Meade's company began to build the house in 2004 and brought it to the point that it was ready for first fix, at which point Mr. Kershaw and his father took over completion of the house. Mr. Kershaw deposed that he had moved into what he described as his family home in 2005.
Mr. Kershaw deposed that his father had paid a total sum of €600,000 to Mr. Meade and exhibited statements which showed a debit for €500,000 in respect of a cheque on 30th March, 2006 and a copy of a directors” loan account (which Mr. Kershaw wrongly described as an EBS statement) showing a payment from the unidentified company to Mr. Meade of €100,000 on 15th February, 2006. These payments of course, post-dated by fourteen and fifteen months the date on which Mr. Meade and his company were said to have brought the house to first fix, and the date on which Mr. Kershaw and his father were said to have taken over the house. The account which showed the debit for €500,000 was an EBS account in the name of ‘ Mr. Alan Kershaw and Manvik Plant GC’.
Mr. Kershaw deposed that he had agreed with his father that he would take out a mortgage of €1.25 million, €790,000 of which was to have been used to repay Mr. Alan Kershaw the money he had spent, and the balance of which was to have been used to complete the property. Mr. Kershaw exhibited an IIB Homeloans letter of 31st January, 2006. That, of course, post-dated by at least six months the date upon which Mr. Kershaw said that he had completed the construction of the property and moved in. Moreover, the €460,000 which would have been left after payment of €790,000 to Mr. Alan Kershaw was well short of the €618,788.52 which Mr. Kershaw had previously said that he had spent finishing the house.
Mr. Kershaw also exhibited a copy of an e-mail of 18th May, 2006 from IIB Homeloans to O'Shea Legal which was said to support his evidence that the mortgage cheque had been issued by IIB Homeloans but the transaction had not been completed. Mr. Kershaw did not then say why the purchase had not been completed but deposed that he was at all material times ready, willing and able to complete. The e-mail of 18th May, 2006 identified the borrowers as ‘ Philip Kershaw & Alan Kershaw’.
Mr. Kershaw deposed that he had been living in the house since 2005; that his now wife, Ms. Michelle Corcoran Kershaw, had moved in in 2007; and that they have a son, Kaleb, who was born in 2012.
In his first affidavit, Mr. Kershaw protested that he had never seen what he referred to as the ‘ alleged mortgage’ of 17th July, 2013. He suggested that Anglo knew full well that his father had paid for the house to be built and would have known that he, Mr. Kershaw, was living there, that it was owned by him, and that it had been purchased from Mr. Meade and Mr. May. Being as charitable as I can, this makes no sense. On Mr. Kershaw's own account, at the time of the mortgage the property was a vacant site. Anglo could not have well known of any agreement or purchase, other than the purchase by Mr. Meade of the site from HSS Limited, which Anglo had funded.
Mr. Kershaw went on to make a number of criticisms of the Anglo facility letters and the like but these all later evaporated and it is unnecessary to dwell on them. By the time this motion came on for hearing, Mr. Kershaw accepted, as he had to, that the paper title to the property was as had been described by Mr. Wallace.
Mr. Kershaw also asserted that at the time...
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Stephen Tennant v Thomas Reidy and Catherine Reidy
...de facto compulsory acquisition by limiting the remedy for trespass to that of damages. 44 As stated by Allen J. in Wallace v. Kershaw [2019] IEHC 382, “if, whether in law or in fact, or both, the defendant has no answer to the claim, there can be no risk of injustice in making the order so......