A man who argued that he was the true owner of premises his father had mortgaged, and over which the bank had appointed a receiver, has lost his application to the High Court for possession.
Finding that the plaintiff had perjured himself in claiming that he had paid his father for an ownership interest in the premises, Mr Justice Twomey was satisfied that the evidence showed the man had instead paid for long-term leaseholds of the premises.
The plaintiff in the present proceedings, Daniel Boylan, was awarded £417,000 in 1998 as compensation for the loss of his leg in a car accident in 1992 when he was 12-years-old.
In his evidence, the plaintiff stated that he was “robbed” by his father, Luigi Sacco, of this money and now had nothing to show for the accident.
In the High Court, the plaintiff pursued a claim against Luigi Sacco, and against Kenneth Fennell – the receiver appointed by IIB Bank (now KBC Bank Ireland Plc).
The claim against the Receiver related to a property in Ranelagh, consisting of ‘Luigi’s Takeaway’ and two apartments over the takeaway, which was mortgaged by Luigi Sacco to the Bank.
The plaintiff alleged that he was the true owner of that premises, rather than his father, and that while he was not taking any issue with the validity of the appointment of the Receiver, he claimed that his ownership of the premises took priority over the rights of the Receiver.
The interest he claimed in the premises was not registered in the Registry of Deeds at the time of the registration of the Bank’s interest in the premises, nor was the alleged ownership interest registered in the Registry of Deeds.
In light of the inconsistent evidence in this case, the key issue was whether on the balance of probabilities the plaintiff did in fact acquire an ownership interest in the premises from his father in 1998/1999 – which interest he claimed would then take priority over the subsequent mortgage by his father of the premises to the Bank.
Copies of bank drafts of the relevant sums were produced in evidence, however Justice Twomey stated that there was “little direct evidence that this payment was made in return for an ownership interest in the premises apart from the plaintiff’s testimony”.
As evidence of his acquisition of an ownership interest in the premises he relied, inter alia, on:
- the payment of €173,000 for the purchase and refitting of the takeaway;
- that he registered the business name ‘Luigi’s Takeaway’ in his own name in September 1998;
- that he paid rates for the takeaway;
- that he invested €60,000 in refurbishing the apartments over the takeaway in 2001/2002.
Based on his alleged acquisition of the ownership of the premises, the plaintiff alleged that his father should not have mortgaged the premises to the Bank in August 2002, and that the plaintiff’s unregistered ownership interest in the premises took priority over the Bank’s mortgage.
The plaintiff also claimed that his ownership interest in the premises took priority over the rights of the Receiver appointed pursuant to that mortgage.
Lack of evidence
No evidence was adduced to show that the Bank was on actual notice of the alleged ownership interest of the plaintiff when the mortgage was executed. However, evidence was produced to the effect that the plaintiff ran the takeaway from 1998 to 2004.
In 2004, the plaintiff became a property developer on a full-time basis, and as a result, from 2004 until late 2014, the takeaway was run by a Mr. Bertuzzi. Two leases between Mr. Bertuzzi and the plaintiff were produced in evidence, however Justice Twomey stated that there was “some concern about the authenticity” of a witness signature on the second lease.
It was important to note that the only evidence which was provided to this Court of the existence of the Deed of Transfer in favour of the plaintiff was his own oral evidence.
Blatant and brazen lies
Evidence was presented to the Court by a solicitor who had previously been instructed by the plaintiff, who alleged that in 1998 the plaintiff “had signed a 35 year lease… and not that he had signed a Deed of Transfer”. This was supported by a 25-year lease which had been signed by the plaintiff in 2008, with his father identified as the landlord. Justice Twomey did not accept the plaintiff’s evidence that this was a “sham lease” for the purposes of assisting his father to obtain finance. Solicitors’ correspondence between 2012 and 2013, delays in the assertion of ownership interest, and evidence from the plantiff’s own emails further supported Justice Twomey’s findings.
Based on an assessment of all the evidence, it was found that on the balance of probabilities the plaintiff did not acquire an ownership interest in the premises in return for the money paid by him to his father in March 1999 and that Mr. Luigi Sacco did not execute a Deed of Transfer in favour of the plaintiff at that time or subsequently.
After hearing further submissions from the parties, Justice Twomey made a Declaration that it was an abuse of process before for the plaintiff to apply for possession of premises based on the existence of a lease, after he deliberately denied and sought to conceal the existence of that lease.
Rejecting all the applications in his Statement of Claim – including for possession of the premises, and for damages for the Receiver’s taking of possession of the premises; the Court made an award of costs against him in favour of the Receiver.
Criticising his “blatant and brazen lies”, Justice Twomey made a declaration that the plaintiff was estopped from making a claim for entitlement to a commercial lease of the premises. The plaintiff was also ordered to pay the receiver €60,000 for wrongly collected rents in respect of the two apartments within the premises.
- by Seosamh Gráinséir for Irish Legal News