The High Court has made a well charging order over lands in County Meath and ordered their sale if Jarlath and Elizabeth Rattigan do not pay €230,235.40, plus interest, within three months after service of the perfected order.
Mr Justice Garrett Simons ruled on Ulster Bank Ireland DAC’s application to enforce a registered lien over the lands in Folio 60665F. The debt arose under a guarantee given by the defendants for debts owed by Fenestech Ltd. The judge also directed that any sale take place at a time and place, and on conditions, to be settled by the court.
The defendants had argued that the bank breached an agreement allegedly reached in late 2011 or early 2012. Their position was that a Mayo apartment would be surrendered to the bank and proceeds applied against their guarantee debt. The judge found that the evidence did not establish that such an agreement had been entered into.
Correspondence showed the bank was willing to accept a proposal to take the apartment, but required the defendants to sign a deed of surrender and hand over the keys. No deed was signed, the judge said, and the defendants did not give up vacant possession. He found no evidence that their solicitor’s stated instruction to agree to surrender had been communicated to or accepted by the bank.
The apartment was itself charged to secure a separate loan. That debt had to be paid before any remaining sale proceeds could go towards the defendants’ other liabilities. The apartment was later sold by a receiver for €174,000. The court papers did not establish what balance remained after the secured debt was repaid; at the hearing, Jarlath Rattigan said he had been told it was about €12,000.
The judge said complaints about notice of the transfer of the apartment loan and charge to Promontoria Scariff DAC were outside the narrow issue before him: whether the guarantee debt was secured against the Meath lands. He also rejected the argument that documents relating to the Mayo apartment provided grounds to resist the application, finding nothing in them that suggested the Meath security was to be released.
The defendants had given a guarantee in 2004, capped at principal of €250,000, and created an equitable mortgage over the Meath lands in 2005. After a payment demand went unmet, the bank obtained a default judgment in 2008 for €230,735.40. The judgment remained unsatisfied apart from a €500 payment. The equitable mortgage was converted into a registered lien in 2009.
The court granted the well charging order for €230,235.40, reflecting that payment, with interest. On costs, the judge gave a provisional view that each side should bear its own, citing the hearing being staggered and the resulting cost and inconvenience to the defendants. The bank may file written submissions seeking a different costs order within 14 days.