The High Court has ordered the removal of a lis pendens registered against a Killiney property and struck out the part of an action seeking to challenge a possession order made by consent.
Mr Justice Sean Ryan ruled on a motion by Irish Bank Resolution Corporation Limited (IBRC), which sought to vacate the registration and have the action, or part of it, struck out as an abuse of process. The ruling concerned “Killbarron”, 4 St Matthias Wood, Church Road, Killiney, County Dublin.
Brendan Kelly and Asta O’Kelly had mortgaged the property with Irish Nationwide Building Society in 2004. After ejectment proceedings, a Circuit Court consent order dated 30 June 2010 provided for possession to be given to the building society, with execution stayed for six months. The stay was extended by agreement, but after what the judgment describes as default by the plaintiffs, the order was sent to the Sheriff for execution. The plaintiffs were removed from the property on 18 April 2012, and the Bank took possession.
The plaintiffs later issued a separate plenary summons claiming damages for slander of title to goods and property, trespass to the mortgaged property, and breach of contract. It also sought a declaration that the possession order was in breach of contract, void or otherwise invalid. They registered the lis pendens on the same day, 20 July 2012, but had not served the summons or notified the Bank of the registration.
The Bank had agreed a sale with a purchaser on 27 August 2012. It argued that the proceedings were an attempt to revisit the consent possession order and had been brought to frustrate the sale. The plaintiffs’ first plaintiff said in an affidavit that the summons had not been served because an expert report was awaited before the claim could be particularised. He denied seeking to impugn the Circuit Court orders and said the claim was based on the Bank’s alleged unlawful and inequitable conduct. The judgment records that no specific basis for a claim to an interest in the land had been put before the court.
Applying sections 121 and 123 of the Land and Conveyancing Law Reform Act 2009, the judge concluded that the proceedings insofar as they asserted an interest in land to support the lis pendens were an abuse of process and were not being prosecuted bona fide. He found that the declaration claim had been introduced to provide a colourable basis for registration in the hope of frustrating a sale.
The court ordered the lis pendens vacated and paragraph (b) of the summons struck out. The judgment does not state that the entire action was struck out.