High Court disallows action to stop sale of house

Thu, Sep 27, 2012, 01:00

THE HIGH Court has cleared the way for the Irish Bank Resolution Corporation (IBRC) to sell the south Dublin home of a couple evicted from the property earlier this year.

In a widely publicised move last April, Brendan Kelly (71) and his wife Asta (63) were removed from their house at St Matthias Wood, Killiney on foot of an eviction order granted to Irish Nationwide, which subsequently became part of the IBRC, in June 2010.

Arising out of their eviction, the couple brought a legal action against IBRC seeking damages for alleged breach of contract and trespass.

Yesterday, in his ruling on a preliminary issue, Mr Justice Sean Ryan struck out part of their claim against the bank, which IBRC had claimed was holding up a deal it had entered into to sell the property.

It is understood the couple are considering appealing the ruling to the Supreme Court. The remainder of their claim against IBRC will proceed.

In its preliminary motion IBRC argued that the Kellys, as part of their action, had registered a notice that there was a legal action pending (known as a lis pendens) over the property.

Declan McGrath for the bank said the notice meant IBRC was unable to go ahead with the sale of the property until the legal dispute had been determined.

The notice and other certain sections of the claim, the bank argued, amounted to an abuse of process and should be struck out.

The couple opposed the bank’s motion. The Kellys, represented by Tim Dixon, argued they were not trying to overturn the 2010 court order, as claimed by IBRC.

They also claimed they were not in an advanced enough position to particularise the full details of the claim, they had not been provided with documentation from IBRC which they were entitled to, and that the IBRC’s application was premature.

In his ruling yesterday Mr Justice Ryan vacated the lis pendens. There was nothing before him to suggest “any legitimate basis for registering the lis pendens”, he said.

It was “very telling”, the judge added, that the Kellys were “not able to suggest any detail or any basis for advancing a claim as to an interest in the property”.

“It would be a clear injustice to permit the processes of the court to be employed for the purpose, and only for the purpose, of frustrating the exercise of legitimate rights.

“That would be the case here if the lis pendens were to be permitted to remain.”

Mr Justice Ryan said he accepted IBRC’s claim that the Kellys were endeavouring to, in effect, “appeal the 2010 Circuit Court order”. He said he was striking out the part of the Kellys’ claim against IBRC where they sought a declaration that the possession order obtained by the bank in 2010 amounted to a breach of contract, was void and therefore invalid.

This part of the claim, the judge said, was introduced “in the hope of frustrating a sale of the property”.

Mr Kelly and his wife, who acquired a number of other properties, purchased the house in 2004 with a €2.2 million mortgage from Irish Nationwide. At the time, the property was valued at €3.2 million.

The outstanding mortgage on the house when the bank sought possession orders was in the region of €2 million.