The High Court has granted Allied Irish Banks plc orders to take possession of land owned by Aqua Fresh Fish Limited and, if necessary, exercise its power of sale under a registered mortgage charge.
Mr Justice Garrett Simons delivered the judgment on 11 April 2019. The application concerned company land, not a family home, and was brought under sections 97(2) and 100(3) of the Land and Conveyancing Law Reform Act 2009.
AIB’s evidence was that the company executed an “all sums” mortgage on 17 February 2010, securing amounts payable on loans or credit granted by the bank. The charge was registered on 11 March 2010. A facility of €155,615 for working capital was sanctioned later that month, with the mortgage and a €155,000 guarantee from company director Adrian Flynn identified as security. The facility was drawn down on 1 March 2010.
The bank said the accounts fell into arrears. A demand letter dated 17 July 2012 stated that €170,880.82 was due as of 15 June that year across two accounts. A demand for possession followed on 24 July 2012, and proceedings began on 2 November 2012.
The case had been delayed while Mr Flynn pursued permission to represent the company. The Supreme Court ruled in October 2018 that exceptional circumstances had not been established to allow him, as a non-lawyer, to represent it. Aqua Fresh Fish Limited had no legal representation at the 2019 hearing. Mr Flynn attended and was allowed to make a brief submission on his own behalf, on a provisional basis, about whether he should be joined as a party.
The judge said Mr Flynn did not argue that he should be joined, including on the basis that he was a guarantor. He made no complaint about the guarantee and confirmed that he had an opportunity to speak to his solicitor before signing the facility letter. The judge also rejected Mr Flynn’s submission that a further mortgage deed was needed for the 2010 facility: the existing deed covered future loans and credits from AIB to the company.
The court found no basis to join Mr Flynn. It concluded that the bank had established its registered charge, default on mortgage instalments, lawful demand for the principal sums, and that the power of sale was exercisable. The judgment states that the bank was entitled to the orders sought; it does not set out further terms of the possession or sale orders.