The High Court set aside a Master’s decision striking out ACC Bank’s special summons against solicitor John Tobin and ordered him to pay the bank €266,374.12 for breaching an undertaking to provide security for a loan.
In a judgment delivered on 27 July 2012, Ms Justice Laffoy found that Tobin had not obtained title to the land or provided the promised first legal mortgage. The court ordered him to pay the amount due on the loan as at 30 April 2012, plus interest at the court rate from the date of judgment and order.
The bank had advanced Tobin, in his personal capacity as borrower, up to €201,000 under a 2003 loan offer. The loan was for three years and was to be repaid in full by 1 August 2006. In December 2003, Tobin, practising as a solicitor, gave the bank an undertaking to ensure he obtained good title to about 52 acres at Ashroe, County Limerick, and that the bank received a valid first legal mortgage over the land.
The judgment said the bank’s evidence showed that the undertaking had remained unfulfilled for more than eight years and that Tobin was unlikely ever to comply. Land Registry records cited in the judgment showed that one folio had been transferred to two other owners in 2008, while another remained registered to Cormac Quigley. The court also referred to an undated, unstamped transfer to Tobin and an undated, unstamped charge in the bank’s favour. The judgment noted that the charge could not be registered against the folio then held by the other owners.
Tobin argued that the dispute should be dealt with at a plenary hearing and challenged the compensation claim, including by referring to the property’s value and separate summary proceedings over the loan debt. Justice Laffoy rejected his answer as a basis for postponing relief, finding the undertaking’s terms clear and its breach established. She said the security’s current value should not reduce compensation in the circumstances of the case.
The special summons had been struck out by the Master on 11 July 2012, with costs awarded to Tobin. The High Court held that the Master had no jurisdiction to dismiss the proceedings and set that decision aside. It ordered payment of €266,374.12, while noting that the debt could not be recovered twice through the separate summary proceedings. The judgment did not determine those proceedings.