Judgment: 2019-11-29 · Court archive

High Court sends Promontoria’s apartment debt claim to plenary hearing

The court refused summary relief after finding both defendants had arguable defences to claims over an alleged €1.44 million debt and an apartment near Herbert Park.

High Court · [2019] IEHC 815

Who, what, where, when and why

Who
  • Promontoria (Aran) Limited (Plaintiff)
  • Patrick O’Reilly
  • Breda O’Reilly (Defendant)
  • Tony O’Connor (Judge)
What

The court refused summary relief after finding both defendants had arguable defences to claims over an alleged €1.44 million debt and an apartment near Herbert Park.

Where

Places mentioned in the report

  • Ireland
  • Dublin
When

Judgment:

Why

Reasons reported in the judgment

The High Court has refused Promontoria (Aran) Limited’s application for summary relief against Patrick O’Reilly and Breda O’Reilly, finding that both defendants had arguable defences requiring a plenary hearing.

The High Court has refused Promontoria (Aran) Limited’s application for summary relief against Patrick O’Reilly and Breda O’Reilly, finding that both defendants had arguable defences requiring a plenary hearing.

The proceedings concern an alleged debt to Ulster Bank Ireland Limited and an apartment and car parking space near Herbert Park, Dublin. Promontoria, which said it had acquired Ulster’s interest in the debts, sought a declaration that a 2007 facility letter and two solicitors’ undertakings created an equitable interest in the property. It also sought payment of €1,441,990.84, with an order for sale of the apartment if the sum was not paid. Promontoria did not pursue its alternative request for a receiver at the hearing.

The judgment records that Breda O’Reilly, who left Ireland permanently in 1994, said she had never applied for an Irish mortgage, banked with Ulster or instructed the solicitor who purportedly gave an undertaking on her behalf. She said she did not know she was a registered owner of the apartment until the proceedings were served in July 2017. Patrick O’Reilly did not dispute his ownership of the apartment, the facility letter’s terms or authorising solicitors to give an undertaking concerning it. The court also noted that his advanced age and cognitive impairment were not disputed by Promontoria at that stage.

The first defendant said he had repaid the debt, but the judgment records Promontoria’s submission that he had provided no supporting documents. The defendants also disputed the amount claimed, including the calculation of principal and interest. Patrick O’Reilly’s affidavits raised questions about delay and included a 2012 Ulster letter stating that the bank did not hold a charge over the apartment and would release its rights upon receiving sale proceeds. The defendants also raised issues over the solicitor’s authority and the effect of section 73 of the Registration of Deeds and Title Act 2006.

Justice Tony O’Connor said the affidavit evidence did not satisfy him that either defendant lacked an arguable defence. He said the age and complexity of the issues, including the second defendant’s account of the solicitor’s authority, made summary determination inappropriate. The court’s decision did not determine whether the alleged debt was owed or whether an equitable interest had been created.

The application for summary relief was refused. The court said it would hear counsel on directions and case management before a plenary trial, and gave the parties liberty to apply under the rules on mediation.

Read the original court judgment

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