The High Court has found that Irish Residential Loan Investments 2015 DAC (IRLI) obtained an equitable mortgage over Tourview Limited’s property in Sutton, including a house claimed by Kevin Thompson. The security, created on 15 July 2016, ranks ahead of any entitlement Thompson claims under a later contract to buy the house.
Mr Justice Brian O’Moore delivered the judgment on 26 March 2021 in proceedings concerning Tourview, which was in receivership. The receiver, Anne O’Dwyer, sought directions to clear the way for a sale of No. 3 Cluain Aedin, Sutton. She said Thompson’s contract, registered in the Registry of Deeds, stood in the way of a sale at market value.
The judgment records that Thompson and Brian Wallace sold Tourview to Copia Capital in 2015. Thompson was owed deferred consideration for his shares. An option agreement between Thompson and Copia provided for payments and contemplated that the Sutton house could be sold if payments were missed. The contract appended to the option agreement, however, was between Tourview and Thompson.
The lender refinanced Tourview in July 2016. The court noted that documents supplied to IRLI did not disclose Thompson’s claimed rights in the house. Thompson knew the Sutton lands had been remortgaged and, in July 2017, exercised the option after the deferred sums remained unpaid. He signed the house contract on 21 July 2017 and registered it in September. He did not sue on the contract, and later refused the receiver’s request to remove its registration.
The receiver argued that the 2016 facility agreement and debenture created an equitable mortgage over the Sutton lands, with priority over any later interest claimed by Thompson. Thompson’s counsel accepted that an equitable interest had been created and took priority, but argued that an accounting inquiry was needed to determine whether sale proceeds might remain for Thompson after the secured sums were paid. Counsel also raised the possibility that IRLI might have learned of Thompson’s option after the mortgage was created, while acknowledging there was no evidence of notification at refinancing.
The judge found that IRLI’s equitable mortgage covered the Sutton property, including the house, from 15 July 2016 and ranked ahead of Thompson’s claimed entitlement. He did not make the other declarations sought in the receiver’s application or determine the final form of order, the amount of any secured balance, or costs in this judgment. He directed that counsel be heard on the order and other matters at 10:30am on 14 April 2021.