Determination of the Supreme Court

The Court of Appeal, in Bank of Ireland Mortgage Bank u.c. & Anor -v- Hade & Anor, made determinations on:  

1. Whether a Receiver had unlawfully taken possession of tenanted properties given by the Borrower to the Bank as security, by not having obtained a Circuit Court Order in advance of having taken possession.
2. Whether the decision of the High Court in granting exemplary damages against the Receiver was correct.
3. Whether the Bank was entitled to its costs for the judgment granted to it at summary stage by the High Court, which costs had been refused by the High Court.

 

The determinations by the Court of Appeal on those issues were:

Section 97 of the Land and Conveyancing Law Reform Act 2009 applies only to mortgagees taking possession of mortgaged properties and a receiver of the types of residential properties the subject of the case (none of which were the principal private residence of the Borrower) does not require an Order for Possession prior to taking possession. As such, the Receiver was not a trespasser.

Consequently, the Receiver taking possession of the Properties could not attract an award of exemplary damages.

Furthermore, despite the Receiver accepting that he did not have Orders for Sale in advance of selling three of the properties, the Court of Appeal held that this did not warrant the Court marking its disapproval by awarding exemplary damages.

 The Court of Appeal allowed the Bank’s and the Receiver’s appeals.  In dismissing the Borrowers’ appeals, the Court of Appeal upheld the High Court award of Judgment in favour of the Bank, but also determined that the Bank’s costs should be awarded against the Borrowers.

 

The Supreme Court Determination

The Borrowers sought leave to appeal the determinations of the Court of Appeal to the Supreme Court to reinstate the High Court’s award of exemplary damages against the Receiver and to declare that the Receiver’s appointment over the properties on foot of the Bank’s mortgages was invalid.

The Constitutional threshold for a further appeal to the Supreme Court from the Court of Appeal is that an issue of general public importance must be established.

The Supreme Court having carefully considered the grounds seeking leave, determined that no issues of general public importance had been established in the application brought and so the application for leave to appeal the determination of the Court of Appeal was refused.

Consequently, the decisions of the Court of Appeal in Bank of Ireland Mortgage Bank u.c. & Anor -v- Hade & Anor remain binding.

 

This document has been prepared by Kane Tuohy LLP on 30 August 2024 for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.