The High Court has ordered the removal of lis pendens registrations made by Bill Cullen against five defendants in a dispute involving Killegy House, Muckross, Killarney. Mr Justice Allen found that the claim pleaded by Cullen did not support registering the action as a claim to an interest in land.
The judgment, delivered on 21 December 2020, concerned an application by Glencullen Holdings Limited, Glencullen Properties Limited, Glencullen Motor Properties Limited, the receivers, and Seaconview Limited. They sought to vacate the registrations under section 121(2)(a) of the Land and Conveyancing Law Reform Act 2009, arguing that the action did not claim an estate or interest in land. They also argued, in the alternative, that it was not being prosecuted bona fide.
Cullen’s claim arose from a €1 million loan connected to the refinancing of the Glencullen companies’ bank facilities. He said the agreement entitled him to 50% of the proceeds from a sale of Killegy House and 25% of proceeds from sales of other group properties, subject to a €1 million limit. He also claimed a 50% beneficial interest in Killegy House. The defendants disputed that the facility terms gave him an interest in the property.
Justice Allen said a beneficial interest in land could support a lis pendens, but the court had to consider whether the pleaded case, if established, could lead to such an interest. The statement of claim sought money said to be payable from property sale proceeds. It did not allege that Cullen had an interest in the properties before sale, and he had expressly disclaimed claiming a charge over the land. The judge concluded that even if Cullen proved his entitlement to payment, that would not establish a beneficial interest in Killegy House.
The court also ruled that registrations against the receivers and certain companies could not stand because they did not hold an interest in Killegy House; the court said claims concerning other properties were directed to sale proceeds and did not identify land capable of supporting registration. It ordered the registrations against the first, third, fourth, sixth and seventh defendants vacated.
The court did not decide whether the loan terms entitled Cullen to payment, whether the defendants had breached an agreement, or whether the action should be dismissed. It also rejected the alternative argument that his claim was an abuse of process arising from earlier proceedings brought by Jackie Lavin. Those proceedings had been settled without a court decision on her claim, and the judge was not persuaded that Cullen was precluded from bringing his own claim.
The proposed costs order against Cullen remained provisional. The judge invited written submissions within specified periods and indicated that execution of any costs order might be stayed pending final determination of the action.