The High Court has ordered the removal of lis pendens registered against seven Athlone Town Centre folios, finding that Charleen Limited unreasonably delayed prosecuting its case against Hurley Property ICAV and others.
The ruling, delivered by Mr Justice David Barniville on 31 October 2018, concerned an application by Hurley to vacate the registrations under section 123(b)(ii) of the Land and Conveyancing Law Reform Act 2009. The court’s decision was based on delay in prosecuting the action. It did not determine the parties’ underlying dispute about whether Charleen was entitled to a transfer of the Sheraton Hotel’s freehold or easements over parts of the centre.
Charleen issued proceedings on 18 May 2017 and registered the lis pendens in the Central Office on 7 June, later registering them as burdens on the folios on 3 August. It did not serve Hurley until 23 November 2017, after Hurley had requested service four times and issued its application to vacate. Charleen delivered its statement of claim on 14 February 2018, one week before the hearing of Hurley’s application.
Charleen said it had held off serving the proceedings in the hope that the parties could resolve their disagreements without litigation. The judge rejected that as a sufficient reason. He said a party registering a lis pendens must prosecute the related proceedings with particular expedition and vigour, and could not leave them unserved while negotiations continued. He also noted there was no explanation for the failure to serve after Hurley requested it, or for the later delay in delivering the statement of claim.
The judge concluded that the more than six-month delay in serving the proceedings was unreasonable, with the later delay in delivering the claim adding to it. He said Hurley had also shown prejudice: the registration hindered its ability to deal with the centre and complete sales of other units. That finding was additional to his conclusion that proof of prejudice was not required under this statutory ground.
The court did not find that Charleen’s claim was bound to fail or that the proceedings and registrations amounted to an abuse of process. It considered Charleen had just established an entitlement to register the lis pendens because its pleaded claims sought easements and transfer of the hotel freehold. Those conclusions did not prevent the court from vacating the registrations on the separate ground of unreasonable delay.
The order vacated the lis pendens registered in the Central Office and against the folios. The judgment did not decide whether the alleged agreement for the transfer and easements existed or what its terms were.