THE COURT OF APPEAL
Neutral Citation Number: [2018] IECA 295
[Appeal number 2017/113]
Irvine J. Hogan J. Whelan J.
KEN TYRRELL
AND
DAVID WRIGHT AND ROPE WALK CAR PARK LIMITED
JUDGMENT of Ms. Justice Máire R. Whelan delivered on the 28th day of September 2018
1. This is an appeal from a judgment of Costello J. in the High Court delivered on 17th February 2017 wherein she determined the entitlement of the respondent (hereinafter "the Receiver") to certain mandatory interlocutory orders against the appellants. Consequential orders were made on 24th February 2017. Same were perfected on 3rd March 2017.
The facts
2. The respondent was appointed as Receiver by Launceston Property Finance DAC (hereafter "Launceston") on 22nd August 2016 over three mortgaged properties of the first-named appellant, Mr. David Wright (hereinafter "Mr. Wright") who describes himself as a private businessman and investor. Mr. Wright's indebtedness arose from a loan agreement with Anglo Irish Bank on or about 3rd November 2006 in respect of the sum of €1,820,000 secured over three properties as hereinafter set out. In 2006 Mr. Wright granted Anglo a first legal mortgage and charge over the properties as security for the said advance. The facilities were renewed from time to time and ultimately expired on 31st December 2012 without having been repaid. Launceston Property Finance DAC (hereinafter "Launceston") acquired the said loans in the course of the special liquidation of IBRC. It is the registered owner of the relevant charges and securities. On 26th July 2016, Launceston served a notice of demand on Mr. Wright calling for immediate payment of the sum of €2,603,732.40 as due and owing pursuant to the mortgage agreement.
3. The three secured properties are known as 1A Swan Lake, Chapelizod Road, Islandbridge, Dublin 8 (hereinafter "1A Swan Lake" ), 1B Swan Lake, Chapelizod Road, Islandbridge, Dublin 8 (hereinafter "1B Swan Lake" ) and 1 Summer Cove, Rosslare, Co. Wexford (hereinafter "Summer Cove"). The latter property is comprised in folio 48025F of the Register of Freeholders, Co. Wexford. The Receiver sought vacant possession of the three secured properties.
Two motions
4. The Receiver, following his appointment, instituted proceedings on 12th October 2016 seeking an order requiring the second-named appellant, a limited liability company, to forthwith surrender vacant possession of Summer Cove to him. He further sought a declaration that any purported leases or licences of the three properties be declared void and of no legal effect.
5. Two motions were issued on behalf of the Receiver. The first issued on 12th October 2016. The reliefs therein sought relevant to this appeal include an order requiring Mr. Wright and all other persons having notice of the said order to surrender forthwith vacant possession of 1B Swan Lake to him. A similar order was sought in respect of Summer Cove and certain prohibitory injunctions were sought restraining Mr. Wright, his servants and/or agents from impeding or obstructing the Receiver in respect of the property 1A Swan Lake. In a second notice of motion the Receiver sought orders pursuant to s. 123 of the Land and Conveyancing Law Reform Act 2009 and/or pursuant to the inherent jurisdiction of the Court vacating lites pendentes registered by Ms. Mary Moore and Mrs. Bernadette Wright against any of the three properties. Ms. Moore and Mrs. Wright are, respectively, the partner and mother of Mr. Wright. This appeal is concerned only with the first motion.
The hearing
6. The motions were heard before the High Court on 18th and 19th January 2017. The appellants were represented by counsel including senior counsel. At the conclusion of the hearing, the learned trial judge reserved judgment which she delivered on 17th February 2017.
7. At the hearing before the High Court in January 2017 Mr. Wright opposed the Receiver's applications on two central grounds. Firstly, it was argued that the Receiver was estopped by reason of representations made and assurances given by the mortgagee Launceston Property Finance DAC and its agents - particularly Pepper Assets Servicing (hereafter "Pepper") - upon which Mr. Wright claimed to have relied. It was further contended on his behalf that one of the properties, 1B Swan Lake, constituted Mr. Wright's principal private residence and as such was governed by the provisions of the operative Code of Conduct for Mortgage Arrears 2013 which then applied pursuant to s. 117 of the Central Bank Act 1989. The Code sets forth the manner in which mortgage lenders and mortgagees are obliged to treat borrowers confronted with mortgage arrears.
The judgment
8. The judgment of the trial judge is detailed and considered. She noted that Mr. Wright advanced two key arguments which he contended entitled him to remain in possession of the property at 1B Swan Lake; estoppel and non-compliance with the MARP code of conduct.
Estoppel
9. Mr. Wright argued that the respondent was estopped from seeking possession of the properties at Swan Lake on the basis of representations made and assurances given by Launceston, and/or its agent Pepper, in 2015 upon which he claimed to have relied. He stated that he had progressed at his own expense an application for planning permission on the basis of a common understanding which had been originally reached with IBRC -and subsequently Pepper- that he would be permitted to develop the two Swan Lake properties to maximise the realisable value on a subsequent sale and that he could retain one of them as his principle private residence.
10. He argued that in reliance on those assurances and the money he expended in securing planning permission Launceston was estopped from purporting to enforce its security.
11. In her judgment, the trial judge made a number of factual findings in relation to the circumstances surrounding this alleged promise. She found no evidence of any representation having been given by Pepper to the effect that Mr. Wright could retain one of the properties at Swan Lake as his principle private residence or any agreement to accept a lesser sum in full satisfaction of the total outstanding debt in the manner contended. She found that there was no identification by Mr. Wright even as to which of the two Swan Lake properties was to be retained for this alleged purpose.
12. She found that nothing had been done by Mr. Wright between the grant of planning permission in September 2015 and late 2016 to progress matters other than service of a notice to quit on a tenant at 1A Swan Lake in June 2016.
13. The trial judge found that the Mr. Wright failed to meet the legal test laid down in the judgment in Doran v. Thompson and Sons Limited [1978] I.R. 223 in order to sustain his estoppel argument viz. that a clear and unambiguous promise or assurance made by the representatives of Launceston to him. It followed that this defence to the Receiver's claim, could not displace the strong case made out by him that he was likely to succeed at the hearing of the action.
14. The trial judge opined that even if she was wrong in this conclusion, the estoppel contended for by Mr. Wright was of a temporary nature only. As such it was open to Launceston to resile from such a promise on giving reasonable notice.
15. In this context the judge found that an email of 30th March 2016 to Mr. Wright made clear that Pepper and Launceston would no longer afford the him the opportunity to carry out works based on the 2015 planning permission. She concluded that any concession/representation had effectively and validly been withdrawn.
Mortgage Arrears Resolution Process - MARP
16. Mr. Wright contended that since April 2015, 1B Swan Lake has been his principal private residence. As such he asserted entitlement to the benefit of the Code of Conduct on Mortgage Arrears (hereafter "CCMA"). He argued that since Launceston had not complied with the provisions of the Code they were not entitled to recover possession of this property.
17. The CCMA regulates the activities of mortgage providers via MARP where a mortgage is secured by a borrower's primary residence.
18. The Receiver denied the applicability of MARP to these loans on four distinct grounds. First, he contended that the facilities were commercial in nature and the first-named appellant only moved in to 1B Swan Lake over 8 years after the commercial loan facility had been agreed and the funds drawn down. He also contended that the Code only applies to regulated entities and Launceston is not a regulated entity. Thirdly, he submitted that Mr. Wright had committed a breach of contract -apart from falling into arrears- which precluded any entitlement on his part to avail of the Code. Finally, the Receiver also argued that Mr. Wright had the substantive and effective benefits of MARP conferred upon him through the process of engagement which had occurred between the parties.
19. The trial judge held that irrespective of whether or not 1B Swan Lake was the principle private residence of Mr. Wright, if he had committed a breach of the negative pledge clause in the mortgage contract that would disentitle him to invoke rights under the Code.
20. She accepted evidence of breaches by Mr. Wright of certain warranties and of the negative pledge requirement contained in the mortgage agreement. Each of these, she was satisfied, constituted a termination event and equally constituted breaches of contract within the meaning of the CCMA provisions which operated to preclude a mortgagor from invoking the benefit of the MARP process.
21. She therefore found it unnecessary to consider whether the Code applied in general to a Receiver or mortgagee entity which is not regulated in the State. She was satisfied that the Receiver had made out a strong case that he was likely to obtain orders for possession of the three properties Summer Cove and 1A and 1B Swan Lake at the substantive trial.
22. The trial judge further concluded on the evidence that damages would not be an adequate remedy for the Receiver. Mr. Wright was unable to pay the very significant debt due to Launceston and clearly would be unable to pay damages to the respondent.
23. By contrast, the Receiver had given an undertaking as to damages. The judge concluded that the balance of convenience lay in favour of granting the injunctions sought.
Orders
24. On 24th February 2017 a number of consequential interlocutory orders were made by the trial judge including that Mr. Wright forthwith surrender to the Receiver vacant possession of 1B Swan Lake, Chapelizod Road, Dublin 8. She further ordered that Rope Walk Car Park Limited, the second named appellant, forthwith surrender to the Receiver or his duly authorised agent vacant possession of Summer Cove.
25. The Court proceeded to make an order restraining Mr. Wright and the company from interfering with the Receiver in the conduct of the receivership and in his efforts to take possession of and sell the three properties. The trial judge granted a stay on her orders insofar as they related to the property 1B Swan Lake, the property wherein Mr. Wright asserted that he was residing with his partner and children.
Notice of appeal
26. Notice of expedited appeal was filed on behalf of the appellants on 14th March 2017. It identifies nine grounds of appeal. It seeks an order setting aside the judgment and orders of the High Court and an order refusing the reliefs sought by the Receiver. It further sought that the matter be remitted back to the High Court for a full plenary hearing.
Events subsequent to High Court judgment
27. It became apparent in the course of the hearing of this appeal that following the orders made by the trial judge the Receiver proceeded to effect the sale and disposition of two of the secured properties, namely 1A Swan Lake, Chapelizod Road, Islandbridge, Dublin 8 and 1 Summer Cove, Rosslare, Co. Wexford.
28. In or about the month of September 2017, subsequent to lodging the notice of appeal, Mr. Wright discharged his legal team and conducted this appeal as a litigant in person on his own behalf. In addition to the nine grounds of appeal identified in the notice of expedited appeal (and which are considered in turn below), Mr. Wright referred to additional grounds which he sought to argue before this Court notwithstanding that no leave was obtained to amend the original notice of appeal.
Ground 1
29. Mr. Wright contended that the trial judge erred in law in resolving disputes on questions of fact in favour of the Receiver at the interlocutory hearing.
30. It is clear from the affidavits sworn by the parties that following the acquisition by Launceston of Mr. Wright's loans, it had appointed Pepper Assets Servicing to engage with Mr. Wright in regard to the realisation of the security. In her judgment, at para. 71, the trial judge considered the issue and her words bear repetition:-
"It is well established that at the hearing of an interlocutory injunction the Court cannot determine factual matters in dispute between the parties. It follows that I cannot resolve the dispute between the plaintiff and Mr. Wigglesworth on behalf of Pepper on the one hand and the first named defendant on the other hand. I must decide whether or not the first named defendant has adduced evidence which could establish that he has a right to do what would otherwise be a trespass otherwise than on the basis of resolving this dispute on the facts. I do so by assessing whether he has done so on the basis of the undisputed facts and taking his evidence at its height."
31. Mr. Wright contended that Mr. Niall O'Reilly, as agent of Pepper (which in turn was an agent for Launceston), represented to him that he would be permitted to develop the two properties, namely the Swan Lake properties, for the purposes of maximising their realisable value and that he would be permitted to retain one of the properties as his principal private dwelling. He contended that since he had expended in excess of €12,000 in obtaining planning permission which issued to him on 8th September 2015, for the purposes of constructing a third floor level to both properties, that this gave rise to an estoppel for his benefit with the consequence that the Receiver was bound by the said representations and was estopped from seeking possession of the Swan Lake properties.
32. The trial judge, having carefully analysed the evidence, concluded at para. 69 of her judgment that Mr. Wright had failed to identify any unequivocal representation made by the representatives of Pepper Assets Servicing to him:-
"[H]e has not identified that the discussions and understandings he refers to were intended to affect the legal relationships between Launceston and the first named defendant. It is of course true that documentary evidence is not required to support a case for promissory estoppel however, it is significant that none of the documentation from 2016 adverts to or supports the promise or representation contended by the first named defendant. Furthermore, some of this documentation emanates from the first named defendant's own solicitors and is indeed inconsistent with the case he now advances. It does not raise issue estoppel."
33. The trial judge correctly identified the relevant legal test as that set down in the judgment of the Supreme Court in Doran v. Thompson and Sons Limited [1978] I.R. 223 and in particular of relevance to the instant case was the judgment of Griffin J. It is authority for the proposition that where one party has by words or conduct made to another a clear and unambiguous promise or assurance which was intended to affect the legal relations between the parties and to be acted upon, and the other party has acted upon it by altering his position to his detriment, the party who gave the promise or assurance cannot afterwards be allowed to revert to their previous legal relations as if no such promise or assurance had been made. Equity will grant relief against him acting inconsistently with such promise or assurance.
34. The trial judge correctly determined that Mr. Wright had failed to establish any stateable basis for a proposition that it had ever been suggested by any servant or agent of Launceston, that he would be permitted to retain one of the Swan Lake properties as his principal private residence in the event that he obtained a grant of planning permission of the kind secured by him on 8th September 2015.
35. It was clear to Mr. Wright as of 30th March 2016 that Launceston would no longer afford him the opportunity to carry out the development in respect of which the planning permission had been obtained. Significantly, no explanation was forthcoming on the part of Mr. Wright as to why the preliminary step of seeking vacant possession of 1A Swan Lake had not proceeded expeditiously after 8th September 2015. Vacant possession of the property 1A Swan Lake was not obtained until 1st November 2016, approximately 14 months after the grant of permission issued.
36. I am satisfied accordingly that the trial judge did not err in her approach as set forth at paras. 71, 72 and 73 of the judgment.
Ground 2 - That the trial judge erred insofar as she determined that any operative estoppel as against Launceston had lapsed or ceased to have any effect
37. The second ground of appeal engages in particular with paras. 74 and 77 of the judgment. The trial judge concluded that the estoppel contended for by Mr. Wright was of a temporary nature only. It was accordingly open to the promisor Launceston to resile from its promise upon giving reasonable notice, she found.
38. I am satisfied that the trial judge correctly assessed the circumstances as between the parties as of March 2016 when Pepper as agent for the Launceston sent an email proposing the sale and disposition of 1A Swan Lake and Summer Cove properties with any potential shortfall to be discussed thereafter.
39. The course of dealings between the parties between 8th September 2015 and March 2016 is also instructive. It is clear, that post the grant of planning permission, negotiations did take place between the parties. During that time, significant claims contending for an equitable interest in the properties were advanced by Mrs. Bernadette Wright, Mr. Wright's mother, as regards the Summer Cove property in Rosslare. Separately, claims were made by Ms. Mary Moore, his partner, asserting an equitable interest in all three properties. Those claims represented a collateral attack on the security and if same had been substantiated or had any validity, they stood to undermine the extent of the mortgagee's security insofar as they contended for an equitable interest in the respective properties. In the case of the Summer Cove property, in substance what was contended for was an unpaid vendor's lien.
40. It was inevitable, given the extent of the indebtedness to Launceston that such claims which were entirely inconsistent with statutory declarations furnished by or on behalf of Mr. Wright in November 2006, would be of grave concern to Launceston. The said 2006 Statutory Declarations, sworn at the time of the grant of the mortgage, and which facilitated the drawdown of the sum of €1,820,000 had warranted that the properties were not subject to any trusts or proprietary interests in favour of any third party. The emergence of such claims in tandem in 2016 inevitably had a chilling impact on the confidence and capacity of Launceston to progress negotiations, particularly when confronted by not one, but two, separate suits contending for beneficial rights in and over the mortgaged property which it was claimed ranked ahead of Launceston's security.
41. I am satisfied that, at its highest, the evidence advanced on behalf of Mr. Wright did not establish that representations and assurances made on behalf of Launceston and/or Pepper in 2015 or 2016 were of sufficient clarity and particularity as to give rise to a stateable claim on the part of Mr. Wright that Launceston was estopped in equity from resiling from its promise.
42. The trial judge correctly identified the relevance of the Privy Council decision in Ajayi v. R.T. Briscoe (Nigeria) Limited [1964] 3 All ER 556; [1964] 1 WLR 1326 to the claim.
43. It is well established in our jurisprudence that the effect of estoppel is to suspend rather than extinguish the promisor's rights. As Laffoy J. stated in The Barge Inn Limited v. Quinn Hospitality (Ireland) Operations 3 Limited [2013] IEHC 387 at para. 70:-
"… its effect is to suspend not to give up altogether a legal right, the right to resile from the promise being available where reasonable notice is given (per Clarke at p. 79). Applying the suspensory effect of the doctrine to the various circumstances which may arise is the most difficult aspect of the application of the doctrine. In the U.K. textbooks, the terminology used to describe the effect of the doctrine tends to be to describe it as being either temporary or permanent, depending on the factual circumstances."
44. Laffoy J. in the said judgment also considered the 32nd Ed. of Snell's Equity , which stated at para. 12-014:- "Where the promise or assurance is more than a temporary concession, [the promisor] will be entitled to withdraw the concession in accordance with its terms…"
Laffoy J. emphasised the following passage from the judgment of the Privy Council delivered by Lord Hodson in Ajayi v. R.T. Briscoe at p. 1330:- "This equity is, however, subject to the qualifications
(1) that the other party has already altered his position;
(2) that the promisor can resile from his promise on giving reasonable notice, which need not be a formal notice, giving the promisee a reasonable opportunity of resuming his position; and
(3) the promise only becomes final and irrevocable if the promisee cannot resume his position."
45. I am satisfied that this ground of appeal as argued by Mr. Wright fails to meaningfully engage with the substance of the trial judge's legal analysis. Particularly the principle that the estoppel contended for was of a temporary nature only and could be withdrawn upon reasonable notice by Launceston or its agent was not addressed beyond a bare denial. There was clear evidence before the trial judge which entitled her to conclude that any concession had been effectively and validly withdrawn. No legal basis to interfere with that determination has been made out.
Ground 3
46. Ground 3 contests the trial judge's finding that it was permissible for the Receiver and/or Launceston or its agent to resile from the representations made to Mr. Wright.
47. In this regard Mr. Wright seeks to rely on various acts effected by him including the service of a notice of termination on the tenant at 1A Swan Lake in June 2016, the express words used by the Receiver and/or Launceston in or about March 2016 and also the likely time frame required to carry out the proposed works at the Swan Lake properties.
48. It is noteworthy that Mr. Wright offers no explanation for the inertia that descended upon him from 8th September 2015 to March 2016.It is difficult to see how Mr. Wright can purport to rely upon the service of a notice to quit by him in June of 2016 on the tenant at 1A Swan Lake as supporting his contention that an estoppel arises in circumstances where the notice was served over two and a half months following receipt of the Pepper e-mail of 9th March 2016 , which left him in no doubt but that any process of negotiations between the parties was at an end and Launceston was proceeding to enforce its security.
49. Whilst detriment was undoubtedly suffered by Mr. Wright in the sense that he expended, on his own estimation, approximately €12,000 in connection with the application for planning permission, this can be dealt with at the plenary hearing and any claim of Mr. Wright in this regard can be adequately satisfied in damages. There is simply no legal basis identified to support his contention that the procurement by him of the grant of planning permission simpliciter would entitle him to the reliefs claimed. Accordingly, this ground of appeal is not established.
Ground 4
50. Mr. Wright contends that in substance the interlocutory relief being sought by the Receiver was mandatory in nature and that accordingly the balance of convenience favoured the resolution of conflicts of evidence by way of a plenary hearing.
51. It is clear from the judgment of the trial judge, and in particular paras. 55 and 56 thereof, that she was solicitous in ensuring that the appropriate test was applied. She directly raised and considered the issue as to whether the Receiver had established a strong case that he would succeed at the trial of the action. Further, she had clear regard to the relevant jurisprudence, particularly Bank of Ireland v. O'Donnell [2016] 2 I.R. 185; [2015] IECA 73 and Maha Lingham v. Health Service Executive [2006] E.L.R. 127. She correctly identified that it was necessary for the Receiver to establish "a strong case that [he is] likely to succeed at the hearing of the action."
52. Clarke J. (as he then was) in the Supreme Court decision of Okunade v. Minister for Justice Equality & Law Reform & Ors. [2012] 3 IR 152; [2012] IESC 49 reviewed the principles governing the grant of mandatory interlocutory orders, recalling at para. 76 that Megarry J. had observed in Shepherd Homes Limited v. Sandham [1971] Ch. 340:-
"In a normal case the court must, inter alia , feel a high degree of assurance that at the trial it will appear that the injunction was rightly granted; and this is a higher standard than is required for a prohibitory injunction."
53. In Okunade Clarke J. noted at para. 78 that in cases where the result of the interlocutory application will:- "either completely, or significantly, decide the case, the courts have felt it necessary to impose a higher standard before an injunction can be granted (normally the Maha Lingham standard). The variation from the pure Campus Oil test can be seen as nonetheless still coming within the general principle of attempting to fashion an order which runs the least risk of injustice for, if the grant or refusal of an interlocutory order will go a long way towards deciding the case .. the risk of an injustice is even greater and the court requires a greater degree of assurance before intervening."
54. It is clear, that the trial judge in the instant case approached the exercise of identifying and applying the correct standard with significant circumspection and correctly concluded that the Receiver had established a strong case that he will succeed at the substantive trial of the action and further that damages would not be an adequate remedy for the Receiver whilst damages would be an adequate remedy for Mr. Wright in all the circumstances of the case. Accordingly, I am satisfied that she correctly concluded, having applied the more stringent test, that the balance of convenience favoured the granting of the reliefs sought in respect of the mortgaged properties. This ground of appeal is not made out.
Ground 5 - The applicability of the MARP Code
55. Ground 5 contends that the trial judge erred in concluding that the provisions of the Code of Conduct on Mortgage Arrears (the MARP Code) did not apply to Mr. Wright and his family. The trial judge considered the MARP Code and its applicability to the property in question, inter alia , at paras. 78-86 of her judgment. It was argued on behalf of the Receiver that the facilities advanced to Mr. Wright were commercial in nature and that the mortgage entered into in 2006 was a commercial mortgage. Further, it was contended that Mr. Wright, his partner and their children had moved into the property 1B Swan Lake in April 2015, over eight years after the loan had been granted and more than two years after the demand loan had expired.
56. The Code of Conduct on Mortgage Arrears 2013, being the version of the Code operative at the relevant date, was promulgated under s. 117 of the Central Bank Act 1989, as amended. By virtue of s. 117 (1) of the 1989 Act, a regulated financial institution is obliged, as a matter of law, to comply with the Code. In particular it provides for the imposition of a moratorium on the institution of proceedings where possession is being sought of the mortgagor's home.
57. On behalf of the Receiver it was contended in the course of the appeal that Mr. Wright had never disputed that he had breached the provisions of the mortgage deed, more specifically the negative pledge clause. In particular, in proceedings advanced by his mother and his partner, he had taken steps to recognise various claims advanced by them to various equitable or beneficial rights in and over the secured properties. The Receiver in the course of this appeal relied on Mr. Wright's own affidavit where he had averred to having represented to his partner, Ms. Mary Moore, that the secured properties "would be part of her assets as much as that of [his]."
58. On behalf of the Receiver it was contended accordingly that by virtue of clause 57 of the Code and by reason of Mr. Wright's breach of contract quite apart from the existence of arrears, the Receiver was entitled to commence legal proceedings for repossession of the properties, including 1B Swan Lake, which at the time was Mr. Wright's primary residence, without any necessity of complying with the provision 56 of the MARP Code which provides:-
"56. Where a borrower is in mortgage arrears a lender may only commence legal proceedings for repossession of a borrower's primary residence , where:-
a) the lender has made every reasonable effort under this Code to agree an alternative arrangement with the borrower or his/her nominated representative; and
b)
(i) the period referred to in Provision 45 d) or Provision 47 d), as applicable, has expired; or
(ii) the borrower has been classified as not co-operating and the lender has issued the notification required in Provision 29."
59. Provision 57 of the said Code provides:- 60. I am satisfied on the facts disclosed and having due regard to the affidavits sworn by Mr. Wright and his conduct and acknowledgments vis-à-vis the claims brought by his mother and partner to have equitable interests declared over the three properties offered as security that having regard to provisions 56 and 57 of the Code, a clear breach of contract was established by the Receiver and same subsisted prior to the institution of the within proceedings. Thus, there was no legal basis upon which Mr. Wright could rely to seek to compel compliance by Launceston or the Receiver with the MARP Code in relation to 1B Swan Lake - assuming that the provisions of the MARP code operated.
61. It was contended on behalf of the Receiver that Launceston, is not a regulated entity for the purposes of the Central Bank Act 1989 and that accordingly the Code had no application. In the circumstances, it is unnecessary to determine whether the MARP Code applies to Launceston in general or this mortgage in particular or not. These issues do not fall to be determined in this appeal for the reasons already stated.
62. I am satisfied on the evidence that the trial judge was correct in her conclusion at para. 86 of the judgment where she states:-
"Even if the first named defendant is correct in his argument that he is entitled to the benefit of the MARP process, if he has been guilty of breach of contract (other than arrears) then there is no basis for his claim that Launceston or the plaintiff may not seek to recover possession of the premises on the basis of the failure to apply the MARP process."
Ground 6 63. Ground 6 provides:- "To the extent that the learned High Court judge concluded that the properties known as 1A and 1B Swan Lake were not the Appellant's family home or principal private dwelling or residence from 2015 onwards on the basis of Statutory Declarations sworn by the Appellant on 18 December 2006 and 20 June 2008, the High Court judge misdirected herself and erred in law."
64. I am satisfied that Ground 6 significantly misconstrues the reasoning and determination of the trial judge in regard to this issue. The trial judge had noted the provisions of the statutory declarations executed by Mr. Wright in 2006 and 2008 wherein he confirmed, inter alia , that the properties were not subject to any trust, licence, tenancy or proprietary interest in favour of any person or body corporate arising by virtue of any arrangement, agreement or contract or by operation of law or otherwise or by reason of any direct or indirect financial or other contribution to the purchase thereof and that the property was held free from encumbrances. It is expressly warranted within the mortgage instrument itself at clause 13.5 that "save as disclosed in writing to the Bank prior to the execution hereof, there are no encumbrances of any nature or kind affecting all or any part of the mortgaged properties."
65. Mr. Wright's subsequent conduct and in particular his active acquiescence and positive encouragement of the claims being advanced by his mother and partner respectively to have interests in the properties which would rank ahead of Launceston, did amount to a clear breach of clause 6 of the mortgage agreement. Clause 6 comprises the negative pledge clause whereby the mortgagor was not entitled without the prior consent of the mortgagee to create or permit to subsist any encumbrance on or affecting any part of the mortgaged properties.
66. Mr. Wright's conduct in acknowledging the claims in question amounted to a clear breach of the express restrictions on the creation of other encumbrances affecting the secured properties. As outlined above and as was determined by the trial judge, this state of affairs resulted in clause 57(b) of the MARP Code being effectively engaged, assuming, as I do for the purposes of this appeal, that the Code did apply to the respondent. As such, the Receiver was entitled to commence legal proceedings for repossession of the property irrespective of whether or not it was Mr. Wright's principal private residence and there was no onus on the Receiver to comply with the provisions of clause 56 of the Code.
67. One is left with the strong impression that Mr. Wright was no stranger to the claims launched by his partner and mother in connection with the secured properties. All the indicators are that he may have proceeded in the expectation that such claims would offer some kind of cheval de frise which might thwart or at the very least significantly delay the Receiver in progressing to realise the secured properties and reducing his mortgage liabilities to Launceston.
68. The trial judge was correct in attaching weight to the fact that the premises wherein Mr. Wright resides, 1B Swan Lake, was not acquired as a family home. Further, the loan facilities the subject matter of the litigation are clearly commercial loans advanced to enable Mr. Wright to acquire and carry out development work at Swan Lake for commercial purposes. The statutory declarations sworn by Mr. Wright in 2006 and 2008 independently confirm that the secured properties in question were not his family home at those relevant dates.
69. The primary reason for Mr. Wright contending that 1B Swan Lake was his family home was for the purposes of invoking the benefit of the MARP Code. However, establishing that 1B Swan Lake constituted Mr. Wright's family home, does not avail him as set out above having regard to provision 57(b) of the Code in light of the clear breaches of the covenants and conditions in the mortgage instrument by Mr. Wright, quite apart from the existence of arrears.
70. As was made clear by Murphy J. in her judgment in Fennell v. Creedon & Anor . [2015] IEHC 711 merely because mortgagors move in to a secured property several years after a commercial loan agreement is entered into is not sufficient to usurp the underlying terms of the mortgage contract. I agree with her assessment where she states at paras. 60-61 of the said judgment:-
"It appears to the Court that this fact simpliciter does not alter the underlying terms of the contract freely entered into by the defendants whereby they transferred their interest in the Property to EBS… In addition, it is clear to the Court from the conduct of the parties that at all stages this contract was treated by the parties as a commercial transaction to the extent that the matter was dealt with in the Commercial Court…"
71. Paragraph 62 of Murphy J.'s said judgment is also instructive where she stated:- "The Court is not at all persuaded that this contract is one which attracts the protection of the Code of Conduct on Mortgage Arrears. The Code is specified to apply to the mortgage loan of a borrower which is secured by his/her primary residence. This particular loan was not secured by the defendants' primary residence. It was only four years after the conclusion of the loan agreement and mortgage that the defendants moved into the property … and converted it into the primary residence."
72. Accordingly, whether or not the Code could be said to apply in general to the respondent Receiver or Launceston falls to be decided on another occasion. Taking Mr. Wright's case at its highest, as I do, and assuming for that purpose that the MARP Code was operative, it is clear having regard to the material breaches of warranty on the part of Mr. Wright of the provisions of the mortgage, apart from mortgage arrears, that the Receiver was entitled to institute proceedings for possession of the property, including any property that constituted the primary residence of Mr. Wright on the relevant date.
Ground 7
73. Ground 7 of the notice of appeal contends that the trial judge erred in concluding that the actions of Mr. Wright amounted to a breach of the terms of his mortgage dated 12th December 2006 for the purposes of clause 56 of the MARP Code. I am satisfied that this ground of appeal is doomed. It is clear that Mr. Wright actively acknowledged the claims of his mother and his partner in the properties. The timing of the claim advanced by his mother, Mrs. Bernadette Wright, is significant. It was inconsistent with the receipt clause in the transfer instrument executed by her and her late husband for the benefit of their son, Mr. Wright, on 23rd January 2006. The claim was inconsistent with the statutory declaration executed by Mrs. Bernadette Wright and her late husband on the same date confirming that the property was not subject to any trust, licence or proprietary interest and further confirming that the property would sell free from encumbrances. That declaration was a prerequisite to the advance by Anglo of €1,820,000 to their son, the first-named appellant.
74. The statutory declaration and the terms of the transfer instrument are inconsistent with the existence of an unpaid vendor's lien. Such a claim is not enforceable against a bona fide mortgagee for value without notice. The acknowledgement of such a claim by Mr. Wright, against the factual background outlined above, constituted a clear breach of the negative pledge at clause 6 of the mortgage instrument which bound him. Mr. Wright's contention in substance amounts to a claim that because the Receiver successfully disputed and contested the claims of Mrs. Bernadette Wright and Ms. Mary Moore that was sufficient to nullify breaches of the negative pledge clause in the mortgage. There is no legal basis identified to support that proposition and I reject it.
75. Irrespective of the stance adopted by the Receiver, it was the conduct of Mr. Wright himself, in purporting to recognise various proprietary claims in equity on the part of his mother and partner over the secured properties that undermined and was inconsistent with the security and amounted to a clear independent breach of the express terms of the mortgage agreement. Accordingly it was Mr. Wright's actions alone which deprived him of the benefits of the MARP Code. For the purposes of the interlocutory application it was appropriate for the trial judge to proceed on the basis that he could prove at the trial that the property was his principal private residence and further that, prima facie , it could have been established at the substantive trial that the Receiver or at least Launceston was an entity bound by the provisions of the MARP Code. This ground of appeal is not made out.
Ground 8
76. Mr. Wright contends that the trial judge erred in concluding that the stated motivation of Launceston Property Finance DAC in appointing a Receiver over the three secured properties on 22nd August 2016 was not in dispute.
77. Mr. Wright does not deny that he gave assurances that potentially amount to an acknowledgment of a proprietary interest in the property to his partner, Ms. Moore. Although ultimately his mother, Mrs. Wright, obtained judgment against him personally, given his financial circumstances such a judgment is worthless. It is clear that the dominant intention of such litigation, in the first instance, was to undermine the bank's security and facilitate the creation of an interest in favour of his mother capable of usurping the mortgagee's contractual rights and which would rank in priority to the bank's claim as mortgagee. This was done at a time when the mortgage arrears exceeded €2 million. Mr. Wright's arguments are neither cogent nor legally sound in regard to this ground of appeal.
Ground 9
78. The ninth ground of appeal relied upon by Mr. Wright is to the effect that:-
"Given the personal circumstances of the appellant and his family, and the express averments made by him on affidavit that the property known as 1B Swan Lake amounted to his family home, the learned High Court judge misdirected herself and erred in law in concluding that the balance of convenience nonetheless favoured the granting of an injunction."
79. It is clear, that Mr. Wright's principal private residence with his partner and children up until the year 2005 was at 61 Connolly Avenue in Inchicore. This appears to have been the family home of his partner's parents.
80. In the year 2005, he purchased the adjoining property, 62 Connolly Avenue and moved to live there with his partner and children. They resided at that address until the year 2009.
81. In 2009, Mr. Wright with his partner and four children moved to Summer Cove, Rosslare, in the County of Wexford, where they resided until April 2015. In the intervening time 62 Connolly Avenue was leased out to tenants. Likewise 1A Swan Lake was rented out. Mr. Wright, with his partner and four children, moved into the 3-bedroomed accommodation at 1B Swan Lake in or about April 2015. It was not disputed that, like 1B Swan Lake, 62 Connolly Avenue is a 3-bedroomed dwelling house. The trial judge noted at the hearing that Mr. Wright had "options available to him, unlike many others who face orders to restrain trespass or indeed orders for possession." (para. 116)
82. At para. 18 of his second affidavit sworn on 9th December 2016 Mr. Wright states that 62 Connolly Avenue is 900 square feet and is owned by him. It has been let to tenants for a number of years. There is no suggestion that any step has been taken by him to request the tenants to give vacant possession, nor indeed has any notice to quit been served notwithstanding the statutory options available to Mr. Wright pursuant to the Residential Tenancies Acts 2004 - 2015. He simply states:-
"In any event the property is not suitable for a family of 6 and the loan has been sold to a fund as a consequence of the equity release taken for investment in Swan Lake to which I have referred in my previous Affidavit."
The correct test
83. Without doubt, as was observed by McCracken J. in B&S Ltd. v. Irish Auto Trader Ltd. [1995] 2 I.R. 142 at p. 146, the entire test for an interlocutory injunction rests upon a balance of convenience but the adequacy of damages is a very important and frequently decisive element in considering where this lies.
84. It is clear from the decision of the Supreme Court in Doran v. Thompson and Sons Limited that to rely on estoppel by representation a party must demonstrate that there was a clear and unambiguous representation. The decision in Doran v. Thompson and Sons Limited was followed by the Supreme Court in the single judgment of Keane C.J. in Ryan v. Connolly [2001] 1 IR 627; [2001] 2 ILRM 174. The dictum of Griffin J. in Doran was acknowledged by Keane C.J. in William Bennett Construction Ltd. v. Greene [2004] IESC 15; [2004] 2 ILRM 96 to be undoubtedly an authoritative statement of the law on promissory estoppel in this jurisdiction. However, as Keane C.J. pointed out, the principle is of no assistance to a claimant who fails to establish the existence of a clear and unambiguous promise or assurance in the first instance.
85. In Okunade v. Minister for Justice Equality & Law Reform [2012] IESC 49 the decision in Maha Lingham v. HSE [2006] E.L.R. 127 was considered. At para. 80 Clarke J. noted that:-
"it could be said that there is something of a tension between the practical requirements which suggests that the court should not engage in a detailed analysis of the facts (or indeed of complex legal questions) at an interlocutory stage, on the one hand, and the requirement, in categories of cases such as those referred to in Maha Lingam or Diamond , that a higher standard than "fair issue to be tried" be established. Of course, in the majority of cases the straightforward "fair issue to be tried" threshold is all that is required to be met. A determination on that issue does not require a detailed factual or legal analysis. However, even in those cases where a higher threshold may need to be met that requirement does not involve the court in a detailed analysis of the facts or complex questions of law. Rather, it obliges the plaintiff to put forward, in a straightforward way, a case which meets the higher threshold. The practical difficulties identified in Diamond would only arise if the court were required to put into the balance a nuanced estimate of the strength of each of the parties' case."
86. The trial judge in her evaluation of the balance of convenience was sensitive to the predicament confronting Mr. Wright, his partner and their children. In the overall context, in circumstances where the property 62 Connolly Avenue was likely to be available for the accommodation needs of Mr. Wright, his partner and their children having regard to the tenor of the Residential Tenancies Acts, I am satisfied that the trial judge was entitled to weigh in the balance and have regard to the various accommodation options available to Mr. Wright. She did so having due regard to the facts. In carrying out that balancing exercise it was necessary to balance the rights of both parties. As the trial judge correctly noted, Swan Lake was acquired on foot of a commercial loan. Mr. Wright moved into 1B Swan Lake eight years after the loan was advanced. This occurred after the facility had expired on 31st December 2012. As the trial judge correctly identified at para. 115 this did not change the reality that the properties remained secured investment properties:- "Whilst fully acknowledging this, nonetheless I must uphold the agreements and security freely granted and not facilitate the frustration of those agreements. The first named defendant has created the dilemma the family now faces."
87. The trial judge further observed at para. 116 that Mr. Wright "cannot seek to resist the plaintiff's application on the basis that he has nowhere else to live when he has not taken any steps to avail of this possible solution to his dilemma." She observed that "when it suited his ends he was prepared to serve a notice to quit on the tenant of 1A Swan Lake but he has refrained to date from serving a notice to quit on the tenant of 62 Connolly Avenue."
88. I am satisfied that her conclusion in the circumstances that the balance of convenience lay in favour of granting the reliefs sought in respect of both properties at Swan Lake as well as the property at Summer Cove was a correct one. By reason of the stay which has been extended, Mr. Wright has of course remained on in occupation and possession of 1B Swan Lake since the High Court judgment was delivered on 17th February 2017.
89. I am satisfied that none of the grounds of appeal identified in the notice of appeal lodged in these proceedings has been established.
Further arguments
90. In the course of the hearing of the appeal Mr. Wright sought to advance further additional grounds outside those relied upon in the notice of appeal. The Receiver objects on the grounds that there has been non-compliance with the rules in regard to amending grounds of appeal and leave of the Court had not been sought in relation to such additional grounds. Mr. Wright has indicated to the Court that he had instituted proceedings against Ireland before the European Court of Human Rights in Strasbourg for alleged violation of the European Convention of Human Rights. It was also indicated that a request had been made for interim measures pursuant to Rule 39 of the rules of that court. This is an entirely distinct process which Mr. Wright is entitled to pursue but it does not impinge upon the within proceedings and in particular any aspect of this appeal.
91. Further Mr. Wright expressed concern at the hearing of this appeal that three different copies of the mortgage instrument have come to light. He contends that all, though each differs to an extent from the other, are attested to be true copies of the original.
92. In the context of an interlocutory injunction however it has to be noted that Mr. Wright does not deny that he entered into and executed a mortgage instrument with Anglo in 2006 in the manner deposed to by the Receiver. I am satisfied that in the context of an interlocutory application the discrepancies, such as they are alleged to be, are not such as might undermine the entitlement of the Receiver to rely on its terms. Furthermore, one of the copies of the mortgage instrument sought to be relied upon is certified by an officer of the Land Registry to be a true copy and I am satisfied that that instrument clearly and unequivocally confirms the key terms of the mortgage agreement between the parties, the covenants, conditions, representations and warranties made on the part of Mr. Wright as mortgagor and the obligations he assumed on foot of which in excess of €1,820,000 was advanced to him in two facilities. The points sought to be relied upon by Mr. Wright in connection with the technical disparities are largely specious and unmeritorious.
93. A further point raised by Mr. Wright was that the court ought to recuse itself on the premise of it being conflicted by reason of the State being a respondent in proceedings being brought or intended to be brought by Mr. Wright before the European Court of Human Rights. That ground is not legally coherent and is misconceived.
94. The position of the co-appellant Rope Walk Car Parks Limited is somewhat unclear. Whilst the notice of appeal was lodged on its behalf, Mr. Wright does not have the authority or capacity in law to conduct the appeal on its behalf.
95. I am satisfied that there was ample evidence before the trial judge to warrant the making of the interlocutory orders in question. It is to be borne in mind that the substantive proceedings in the High Court remain live pending the outcome of this appeal.
96. No stateable ground of appeal having been identified amongst the various supplemental affidavits sworn by Mr. Wright and in light of the observations above and having due regard to the submissions of the parties, I would dismiss this appeal on all grounds.
