Ewins v Promontoria Scariff Designated Activity Company & Anor (Approved)

Factual and Procedural Background

The Plaintiff and her estranged husband are joint owners of a property purchased in 1999 with a mortgage. The mortgage was subsequently transferred and acquired by Company A on 30 November 2018. The Plaintiff separated from her husband in 2012 and claims to have since made the property her principal private residence. The Plaintiff has been in default on mortgage repayments for several years. Company B was appointed as receiver over the property on 20 October 2020 and purportedly sold the property by public auction on 24 July 2024.

In interlocutory proceedings, the Plaintiff sought injunctions to restrain completion of the sale and any interference with her peaceful enjoyment of the property pending trial. She also sought an interlocutory order restraining Company A from denying her right of redemption of the mortgage.

Legal Issues Presented

1. Whether the property is the Plaintiff's principal private residence and if the purported sale was unlawful due to non-compliance with the Central Bank's Code of Conduct on Mortgage Arrears.
2. Whether the Plaintiff was unlawfully denied the right to redeem her mortgage prior to the auction.

Arguments of the Parties

Plaintiff's Arguments

• The property is her principal private residence, supported by her adult son's affidavit stating he lives with her there.
• The purported sale was unlawful as Company A did not comply with the Central Bank's Code of Conduct on Mortgage Arrears.
• Company A unlawfully refused to allow her to exercise her equitable right of redemption prior to the auction on 24 July 2024.
• She relied on email correspondence and a draft loan agreement to establish that she had funds available and attempted to redeem the mortgage before the auction.

Defendants' Arguments

• They dispute the property is the Plaintiff’s principal private residence, asserting she resides at a different address and that the property has been rented out at times since 2012.
• They challenge the Plaintiff’s affidavits primarily with hearsay evidence and raise a procedural objection that the Plaintiff is abusing the court process by re-litigating the same PPR issue previously settled by consent orders in April 2024.
• They contend the Plaintiff did not make a bona fide exercise of her right of redemption prior to the auction, relying on email correspondence and a draft loan agreement to argue no valid tender or repayment was made.
• They argue the draft loan agreement is "unorthodox" and lacks bona fides, noting it does not address the joint ownership and appears incapable of execution.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Small v. The Governor and Company of The Bank of Ireland & Ors [2018] IECA 393	Abuse of process where the Plaintiff sought to re-litigate issues already settled by consent orders.	The court found the Plaintiff’s attempt to revisit the principal private residence issue constituted an abuse of process and refused relief on that ground.
Merck Sharp & Dohme Corp v. Clonmel Healthcare Ltd [2019] IESC 65	Guidance on where the balance of justice lies in interlocutory relief.	The court considered this authority in assessing the balance of convenience and justice, favoring refusal of interlocutory relief on the PPR issue.
Dellway v. NAMA [2012] IESC 14	Recognition of the equitable right of redemption as an important property right.	The court acknowledged the Plaintiff’s right of redemption but examined whether it was validly exercised prior to the auction.
Harrington v. Gulland Property Finance Ltd & anor No.2 [2018] IEHC 445	Definition of the right of redemption as the right to have security released upon repayment.	The court relied on this definition to determine that no repayment or valid tender had been made by the Plaintiff before the auction.
Shearer v. Spring Capital Ltd [2013] EWHC 3148 (Ch)	Requirements for a valid tender of payment to exercise right of redemption.	The court found the Plaintiff’s actions did not amount to a valid tender as funds were not set aside or transferred in a manner required to exercise the right of redemption.

Court's Reasoning and Analysis

The court first addressed the principal private residence (PPR) issue, noting conflicting affidavits and the lack of cross-examination on the Plaintiff’s evidence. The Defendants challenged the Plaintiff’s right to raise this issue again, given that the Plaintiff had previously litigated and settled the same issue by consent orders in April 2024. Applying the Court of Appeal’s decision in Small v. The Governor and Company of The Bank of Ireland & Ors, the court found the Plaintiff’s attempt to re-litigate the PPR point constituted an abuse of process and refused relief on that ground.

Regarding the Plaintiff’s right of redemption, the court acknowledged that such a right is recognized by contract, statute, and equity, citing Dellway v. NAMA. However, it found that the Plaintiff did not validly exercise this right before the auction. The court analyzed the email correspondence and a draft loan agreement relied upon by the Plaintiff, concluding that the Plaintiff’s actions amounted to an offer to redeem rather than an actual repayment or valid tender. The draft loan agreement was described as "unorthodox," lacking essential terms, and incapable of execution as it did not include the joint owner’s involvement.

Relying on the reasoning in Shearer v. Spring Capital Ltd, the court held that a valid tender requires funds to be set aside and available on demand, which was not established here. Consequently, the Plaintiff had not demonstrated a fair question to be tried that her equitable right of redemption was unlawfully fettered or denied.

The court emphasized that this interlocutory decision does not preclude the Plaintiff from litigating these issues at trial, where full evidence and argument can be heard. At this stage, the court was not persuaded that the balance of justice favored granting interlocutory relief.

Holding and Implications

The court REFUSED the Plaintiff's application for interlocutory relief.

The refusal means the auction sale stands and no injunction restraining completion or interference with the property was granted at this interlocutory stage. The Plaintiff retains the right to pursue her claims regarding principal private residence status and right of redemption at trial. No new precedent was established by this decision, which primarily addresses procedural and evidential deficiencies in the Plaintiff’s interlocutory application and confirms the court’s reluctance to grant interlocutory relief absent a clear and bona fide exercise of rights.