Judgment: 2018-03-20 · Court archive

High Court finds former tenant has no defence to Havbell’s possession claim

The court held that the 2014 tenancy and purchase option did not bind the registered charge holder. It ordered possession and said it would hear submissions on the terms of the order.

High Court · [2018] IEHC 175

Who, what, where, when and why

Who
  • Havbell Designated Activity Company (Plaintiff)
  • Maria (otherwise Mariah) Isabel Dias (otherwise Harvey) (Defendant)
  • John Rooney
What

The court held that the 2014 tenancy and purchase option did not bind the registered charge holder. It ordered possession and said it would hear submissions on the terms of the order.

Where

Places mentioned in the report

  • 1-2 Phibsborough Road
  • Phibsborough
When

Judgment:

Why

Reasons reported in the judgment

The High Court held that Maria (otherwise Mariah) Isabel Dias (otherwise Harvey) had no arguable entitlement to remain in 1-2 Phibsborough Road against Havbell Designated Activity Company, and ordered possession to the company. The court said it would hear the parties’ submissions on the terms of the order.

The High Court held that Maria (otherwise Mariah) Isabel Dias (otherwise Harvey) had no arguable entitlement to remain in 1-2 Phibsborough Road against Havbell Designated Activity Company, and ordered possession to the company. The court said it would hear the parties’ submissions on the terms of the order.

The judgment, delivered by Ms Justice Costello on 20 March 2018, arose from Havbell’s application for an injunction restraining trespass and related relief. Dias opposed interlocutory relief and sought a plenary hearing. The court concluded that the plaintiff had established its right to possession and that Dias had not put forward evidence of a right to occupy that could bind the company.

The property was secured by a registered charge granted by John Rooney to Irish Life and Permanent plc. Rooney’s mortgage terms required prior written consent for a letting or other grant of occupation. After Rooney fell into default, he voluntarily surrendered possession to Permanent TSB in May 2015. The charge was later transferred to Havbell, which was registered as its holder.

Dias relied on a September 2014 business tenancy agreement, an option to purchase, and claimed expenditure of €50,000 to €80,000 on repairs and restoration. The judge found no evidence that the mortgagee had consented to the tenancy or purchase option. Applying an earlier High Court decision, she said the burden of proving consent rested on the party relying on the lease. The September agreement also superseded an earlier June agreement.

The judge rejected Dias’s preliminary challenge to Havbell’s proof of title and authority to bring proceedings. Havbell’s registration as charge holder was sufficient on the evidence presented; no facts were raised suggesting the registration should be changed. The court also rejected arguments that delay or the unserved Circuit Court proceedings barred the High Court case, and found no basis to refuse relief because Dias had offered to buy the property.

Although the court held that an injunction could issue to restrain a trespass without applying the Campus Oil test, it considered that test in the alternative and found Havbell had made a strong prima facie case. The judgment did not set out the terms or timing of the possession order; those were left for submissions.

Read the original court judgment

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