The High Court has ordered the removal of a lis pendens registered against a property after finding an unreasonable delay of at least 30 months in serving the proceedings connected to it.
Mr Justice Dignam ruled on Promontoria (Finn) Limited’s application to vacate the registration under section 123 of the Land and Conveyancing Law Reform Act 2009. The judgment, delivered on 12 April 2024, concerns a folio identified in the decision as DN65271F; the source also contains differing folio numbers in its account of the registration.
Thomas Markham issued proceedings against Promontoria and receiver Tom O’Brien on 15 July 2020 and filed a lis pendens that day. It was registered on the property folio on 22 July 2020. A lis pendens alerts people dealing with property to proceedings that may affect their interests and can hinder a sale or other dealings with it.
Promontoria said a sale arranged by the receiver did not proceed after the purchaser’s solicitors discovered the registration. The judge found Promontoria was affected by the lis pendens, noting that the proposed sale had been frustrated. He said Promontoria’s registration as owner of the mortgage on the folio supported its position that it was affected; the application did not require the company to prove its entire underlying case.
The summons in Markham’s proceedings had not been served when Promontoria swore its grounding affidavit in May 2022, 22 months after issue, or by the hearing, around 30 months after issue. Promontoria’s solicitors had requested service in September and November 2020. Markham replied to the second letter but did not provide the summons.
Markham cited Covid-19, difficulty accessing the courts and underlying health issues. The judge rejected those explanations, finding they did not explain why the summons could not be served, including after the requests. He also said any need to inspect documents would not explain a failure to serve a summons that had already been issued. He expressed no view on whether document inspection was necessary before a statement of claim could be drafted.
The court concluded that the delay was unreasonable and said it did not need to decide whether Markham’s proceedings were being prosecuted bona fide. It ordered relief in the terms of paragraph one of Promontoria’s motion. The judge reserved the question of whether to order cancellation of the lis pendens through a notice lodged in the Central Office or to make a different order vacating the Central Office registration. The decision therefore does not specify the final form of that part of the order.