Facts
The Plaintiff Mr. O'Connor borrowed monies from Bank of Scotland Ireland Limited with several of his properties made the subject of mortgages and charges as security for the loans. Subsequently, joint receivers were appointed over the properties after the loan repayments failed to be discharged. Mr. O'Connor sought to avoid his indebtedness by suing varies parties involved in handling the receivership of the properties.
The Plaintiff sought leave of the court to bring an action against the receiver Mr Luke Charleton, preventing him from dealing with any of the properties under receivership. Leave of the court is not usually required to bring an action. However, this was exceptional as the Plaintiff was the subject of an 'Isaac Wunder' order which was made against him by the High Court in 2017.
An ‘Isaac Wunder Order’ is an order that requires a litigant, who is found to have initiated proceedings that are an abuse of process against another party, to apply to the court for its prior consent before that litigant can issue further proceedings against that same party. In practical terms, it prevents Mr. O'Connor from bringing proceedings relating to the properties against a list of individuals as set out in a schedule to the order. In this application, Mr. O'Connor sought leave from the court to bring proceedings against Mr Charleton listed in the schedule.
Mr. O'Connor had previously brought six separate sets of proceedings against various defendants in relation to the properties the subject of the receivership, ranging from the auctioneers to the subsequent purchasers, the Property Registration Authority and in relation to the validity of the appointment of the joint receivers. Mr. O'Connor was not successful in any of the previous proceedings.
Decision
To relieve a party from the effects of an Isaac Wunder order, they must demonstrate that they have a sustainable claim. The applicant must furnish the court with a draft statement of claim to enable the court to see the remit of the applicant's potential claim. In the draft statement of claim, Mr. O'Connor sought to argue that the receiver Mr Charleton was trespassing and unlawfully on the property since the other joint receiver retired and was discharged from his duties as a joint receiver. However, the mortgage document which provides for the rights and obligations of the receiver, allowed for one or more persons to be appointed as receiver and so the receiver was lawfully appointed and acting. The court referenced the case of Sheedy v Jackson [2020] IECA 167 which supported the interpretation that joint receivers could act severally. The court emphasised that the novation and changes in parties involved did not affect the validity of the receivership. The court found that Mr O'Connor's claims of misconduct by Mr Charleton were baseless considering the legal documents and the history of the matter.
The Judge refused permission to bring proceedings against Mr Charlton as the intended proceedings were the type already captured by the Isaac Wunder order and would constitute a frivolous claim if allowed to proceed against the defendant. The court also emphasised the individual powers of the receiver as grounds also for refusing leave.
Patrick O'Connor v Property Registration of Ireland [2024] IEHC 128
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