The High Court has ruled that Allied Irish Banks plc can obtain a well charging order against Kellie Greene’s interest in a Balbriggan property for loans made to her, but it has not established a charge against the interest of her co-defendant, Kenneth Greene, under his guarantee of those loans.
Mr Justice Garrett Simons delivered the judgment on 19 August 2022 in proceedings brought by special summons. Neither defendant appeared at the July hearings. The judge was satisfied that both had been properly served and notified of the hearing dates.
The bank had lent Ms Greene a total of €336,500 under three facilities. The first two were for the purchase of a dwelling at 19 Hamlet Avenue, Chieftain’s Way, Balbriggan; the third, made in 2006, restructured her debt. Although the facilities contemplated security through deposit of the property’s land certificate, no certificate had been issued. The bank relied on a solicitor’s undertaking to deliver title documents. A lien in the bank’s favour was registered against the property’s folio in February 2008.
After payment defaults, the bank demanded repayment from Ms Greene in November 2014. It also demanded payment from Mr Greene under a guarantee he had signed in 2006. The guarantee capped his liability at €336,500 plus interest. The bank argued that its documentation also secured the guarantee against his interest in the property.
The judge rejected that argument. He found no evidence that Mr Greene had agreed to mortgage or charge his interest to secure the guarantee. The loans were granted to Ms Greene alone, and the solicitor’s undertaking dated from 2004, before the guarantee was signed. The judge also noted that the bank had not afforded Mr Greene the mortgage arrears process it applied to Ms Greene.
Applying the Court of Appeal’s guidance in *Promontoria (Oyster) DAC v Greene* [2021] IECA 93, the judge concluded that the bank had proved the link between Ms Greene’s loan debt and the security registered against her interest. He therefore said a well charging order would be made against her interest. The bank had not proved a mortgage or charge over Mr Greene’s interest, so the relief sought against him was unavailable in these proceedings.
The judgment did not make a final order for sale or partition. The proceedings were listed for final orders on 10 October 2022, when the court would hear submissions on whether such an order was appropriate.