The High Court struck out a claim by Atlantis Developments Limited and Lazarus Investments Limited over properties registered to Paul and Jillian Cohen, finding the companies’ pleaded case was bound to fail. The court did not determine the pending costs issue; it listed the matter for mention on 4 October 2022.
Mr Justice Brian O’Moore gave judgment on 28 July 2022 on the Cohens’ application to dismiss or strike out the proceedings and to vacate lis pendens registered against two County Clare folios. The plaintiffs did not appear at the hearing, though the judge considered two affidavits from John Declan Flanagan delivered on their behalf.
The companies claimed interests in the properties through a 2005 purchase contract and a 2012 agreement between them. They alleged that mortgages granted in 2007 and 2009 were invalid because the deeds did not contain the true signatures of company directors. They also challenged the Cohens’ 2021 transfer from Promontoria (Arrow) Ltd and alleged wrongful occupation and slander of title.
The Cohens were registered as owners in July and August 2021. The companies’ appeals against the Property Registration Authority’s decisions were dismissed by the Circuit Court on 1 February 2022. The High Court noted that the companies had not alleged fraud or mistake in the registration, as required to seek rectification under section 31(1) of the Registration of Title Act 1964. It also said the claim challenging the Cohens’ registration had been overtaken by the registration itself.
The judge said the companies sought to challenge a transaction to which they were not parties without joining Promontoria or the receiver, Ken Fennell. Their claim to legal and beneficial ownership also omitted parties potentially relevant to that issue, including IBRC (in special liquidation). The court found that the claims lacked a factual or legal basis as pleaded. Although some defects might have been addressed by amendment, the plaintiffs had not applied to amend their case.
The court struck out the proceedings under Order 19, rule 28 of the Rules of the Superior Courts. The judge said he would also strike them out under the court’s inherent jurisdiction as an abuse of process if required. The judgment records no decision on the requested lis pendens relief or costs; costs were listed for later consideration.