The High Court has granted Promontoria (Oyster) DAC a well charging order and an order for sale over lands in County Westmeath in respect of two loans, while refusing relief on a third loan because key contractual terms were not before the court.
Mr Justice Garrett Simons said the lender had not established that the principal under the first loan was due when it began proceedings against Desmond Greene on 12 April 2018. The loan offer, signed by Mr Greene on 3 October 2008, provided for a ten-year term. The court said it could not assume that missing contractual terms allowed the lender to demand repayment before that term expired.
The lender relied on an equitable mortgage said to have arisen when Mr Greene deposited the land certificate for Folio 10081F with Ulster Bank. It argued that the mortgage secured debts under three loan agreements and that Promontoria had succeeded to the bank’s interest. The court noted that the terms supplied for the first loan were for lending to individuals, although its offer letter referred to terms for lending to companies. The company-lending terms were not exhibited, and the lender’s affidavit had incorrectly said the individual-lending terms applied.
The judge also identified uncertainty in the evidence about when the land certificate was deposited. A bank document referred to both 27 November 1992 and 11 February 1993, and was not signed by Mr Greene. The court said the date mattered because it could affect priority against competing mortgages or charges.
The dispute at the hearing centred on the first loan. Mr Greene did not file an affidavit or challenge the enforceability of the other two loans or the transfer documentation. The court found the principal monies due under those two loans and granted relief limited to them. The judgment does not set out the amount covered by the final order.
The court refused the lender’s application for costs and made no order as to costs, citing the incorrect affidavit statement and the refusal of relief on one loan. It allowed Mr Greene 12 months to pay the principal and interest due under the second and third loans. If he does not pay within that period, the lands are to be sold under the court order.