The High Court has declared that €190,000 is well-charged in favour of Promontoria (Oyster) Designated Activity Company over the interests of Oliver O’Sullivan and Edmund Heaphy in Apartment 43, Dubh Carraig, Ardmore, County Waterford. The order was based on a 2007 loan facility and excludes the interest Promontoria had claimed.
In a judgment delivered on 19 October 2022, Ms Justice Emily Egan found that the signed facility letter showed an unambiguous agreement to secure the loan with a first legal charge over the apartment. The principal sum had been advanced, repayment had fallen into default, and Heaphy accepted that the principal remained outstanding.
Promontoria had sought a declaration that €255,163.68 was due as of 24 August 2018, plus interest, and asked that the sum be well-charged on the defendants’ interests in the apartment. The judge said the claim and supporting evidence did not explain how the asserted debt had been calculated. The lender had exhibited a two-line statement showing an opening balance of €252,627.94 and interest at a stated current rate of 2%, but had not explained how the opening balance or interest figures were derived.
The judge was satisfied that the €190,000 principal advanced under the 2007 facility remained unpaid, but was not satisfied that the claimed interest was due. She said Promontoria had not amended its summons or provided further evidence setting out the calculation. The declaration was therefore limited to the principal.
Promontoria also relied on a solicitor’s undertaking given to Ulster Bank in 2002. The judge found that it was not sufficiently clear to establish an equitable mortgage over Apartment 43. The undertaking did not clearly identify that apartment, and the evidence did not show whether the funds associated with it remained outstanding. The proceedings had also started more than 12 years after the undertaking.
The judgment records that Ulster Bank transferred its rights in the loan facility and related documents to Promontoria under a Global Deed of Transfer dated 19 December 2016. The judge accepted supplementary affidavit evidence that the deed had been validly executed.
Heaphy argued that the claim was time-barred and raised concerns about the transfer and the bank’s loan valuations, relying on an English Court of Appeal case involving another financial institution. The judge rejected his request to adjourn the hearing and declined to admit a late affidavit on those matters, finding the proposed evidence and discovery would not assist the proceedings. The judgment does not grant the full debt and interest sought by Promontoria.