Everyday Finance Designated Activity Company v Whelan

THE HIGH COURT [2023] IEHC 791 [Record No. 2022/43 SP] BETWEEN EVERYDAY FINANCE DESIGNATED ACTIVITY COMPANY PLAINTIFF AND GERALDINE WHELAN DEFENDANT EX TEMPORE JUDGMENT of Ms. Justice Egan delivered on the 13th day of November, 2023 Introduction 1. On 24th March, 2022, Everyday Finance Designated Activity Company (“Everyday”) initiated proceedings by way of special summons, seeking a declaration that, by virtue of a judgment mortgage registered on lands and property contained within folio 24496F of the Register of Ownership of Freehold Land in the County of Wexford (“the property”) on 13th February, 2014, the interest of the defendant (“Ms. Whelan”) in the said lands stands well charged with the sum of €236,249.99, together with other associated reliefs. Factual Background 2 2. Ms. Whelan was registered as the sole owner of the property on 3rd August, 1999. By credit agreement of 18th July, 2008, AIB Plc (“AIB”) agreed to advance to Ms. Whelan and to her husband, Mr. Jack Fardy, an amount of €220,000 in substitution for existing facilities on the account. The security for the said loan included an all sums mortgage in favour of AIB on certain lands owned by Mr. Fardy which are not the subject matter of these proceedings. The credit agreement is signed by both Ms. Whelan and Mr. Fardy. 3. Subsequently, by credit agreement of 11th January, 2010, AIB extended further credit to Ms. Whelan and Mr. Fardy, the security for which included a solicitor’s undertaking to lodge the sale proceeds and hold the deeds in respect of the property. This credit agreement is also signed by Ms. Whelan and Mr. Fardy. 4. Although Ms. Whelan avers that she “never executed any indenture of mortgage over [her] property with AIB in either 2008 or 2010” and that she “never allowed a charge on her real property”, it is important to note at the outset that the present application is not premised on the existence of a mortgage or charge over the property but, rather, on a judgment in proceedings entitled Allied Irish Banks Plc v. Jack Fardy and Geraldine Whelan, bearing record number High Court 2010/4564S on 20th September, 2013. This judgment was granted on foot of a summary summons coming on for hearing before Hedigan J. by way of an appeal from the order of the Master dismissing the application for liberty to enter final judgment against Ms. Whelan and Mr. Fardy in the said amount. Hedigan J. granted AIB liberty to enter final judgment as against Ms. Whelan and Mr. Fardy jointly and severally in the sum of €239,877.38. A stay on the said order was refused. Neither Ms. Whelan nor Mr. Fardy filed an appeal as against this judgment, nor has any application been made to challenge the judgment at any time other than in the affidavits in the present proceedings. 5. AIB duly registered a judgment mortgage against the interests of Ms. Whelan in the property in the register maintained under the Registration of Title Act 1964 (“the 1964 Act”). 3 6. On 17th January, 2020, AIB, AIB Mortgage Bank, EBS Designated Activity Company and Haven Mortgages Ltd (for present purposes, “the sellers”) and Everyday executed an Irish law deed of transfer (excluding transfer) (the “Irish law DOT”) whereby the sellers unconditionally, irrevocably and absolutely granted, conveyed, assigned, transferred and assured to Everyday (insofar as not otherwise granted, conveyed, assigned, transferred and assured pursuant to an associated deed) all such rights, title and interests as the seller may have in and to, inter alia, the loan facilities described at paras. 2 and 3 above and the judgment dated 20th September, 2013 with effect from the transfer date. A redacted copy of the Irish law DOT is exhibited. 7. On 9th March, 2021 Everyday’s ownership of the judgment mortgage over the property was registered within folio WX76S of the register maintained under the 1964 Act. Folio WX76S cross-refers to the judgment mortgage registered in favour of AIB in respect of the property. 8. By letter dated 23rd January, 2020, AIB notified Ms. Whelan of the agreement to assign her loans and related security to Everyday. 9. On 2nd November, 2021, BCM Global ASI Ltd (formerly Link ASI Ltd) (“the servicer”) issued a letter of demand to Ms. Whelan. The letter of demand references the 2008 facility letter and also references the judgment mortgage registered on the folio of the property. The letter states that the amount due is €322,267.46. The amount stated in the letter of demand is, therefore, different to the amount for which judgment was recovered as against Ms. Whelan and Mr. Fardy on 20th September, 2013. Course of the proceedings 10. The proceedings were initially returnable before the Master of the High Court on 26th April, 2022 and were adjourned from time to time. A “notice of interim conditional appearance 4 to contest High Court statutory jurisdiction based upon new evidence becoming available” was entered by Ms. Whelan on 23rd May, 2022. 11. On 16th June, 2022, the Master of the High Court transferred the special summons to the Chancery Summons List. On 18th July, 2022, the matter was adjourned as per the practice direction of the Court to 10th October, 2022. Thereafter, the matter was adjourned from time to time as affidavits were filed. After pleadings closed, the matter was fixed for hearing on 16th June, 2023. 12. The matter was called on before O’Moore J. on 8th June, 2023 and came on for hearing before me on 16th June, 2023. During the course of the said hearing, Ms. Whelan sought to have Mr. Fardy address the Court on her behalf in defence of the application. I declined to accede to this request as, although both Ms. Whelan and Mr. Fardy were named as defendants to the judgment of 20th September, 2013 and, therefore, on the judgment mortgage, Ms. Whelan is the sole registered owner of the property the subject matter of this application. 13. In Pepper Finance Corporation DAC v. Moloney [2022] IECA 287, Allen J., overruling this Court, conducted a review of the authorities on the issue of representation of litigants by unqualified persons. The Court noted that the general rule, which is subject to limited exceptions, may be stated as follows:- “The general rule, then, is that no litigant – whether natural or corporate – has a right to be represented by anyone other than a qualified lawyer but the court has a discretion, in the interests of justice, in exceptional circumstances, to permit lay representation.” 14. Allen J. provided examples of what might constitute such “exceptional circumstances”. One such example is Coffey v. Tara Mines [2007] IEHC 249 which involved a personal injury claim in which the plaintiff had sustained severe physical injuries such that he could not advocate on his own behalf, was unable to find solicitors willing to take on the case, had been 5 refused legal aid and, in the absence of the plaintiff’s wife representing him, the claim could proceed no further. 15. In the present case, the affidavits and evidence before the Court do not present any facts or circumstances which could be considered exceptional, or which suggest that Ms. Whelan is unable to represent herself. Accordingly, on 16th June, 2023, I declined to permit Mr. Fardy to address the Court on behalf of Ms. Whelan. 16. I took up the hearing on 16th June, 2023. Counsel for Everyday opened the papers and presented the application in full. However, matters proceeded slowly as it was necessary to ensure that Ms. Whelan (and Mr. Fardy) were able to fully follow counsel’s presentation of the matter. As a result, the presentation of Everyday’s case exceeded the allotted time period of three hours and the matter was required to be taken up on a further date. 17. In ease of Ms. Whelan, I, therefore, directed that Everyday file a second set of legal submissions summarising their oral submissions and setting out in detail their response to all of the points argued in her affidavits and legal submissions. I also allowed sufficient time for Ms. Whelan to file a second set of legal submissions in response. 18. Therefore, by the time the matter was re-listed before me on 7th November, 2023, the following had occurred: • a lengthy exchange of affidavits; • both Everyday and Ms. Whelan had put in an initial set of legal submissions; • the application on behalf of Everyday had already been opened in full to this Court in the presence of Ms. Whelan and Mr. Fardy on 16th June, 2023; • Everyday had filed a second set of detailed legal submissions setting out all of their case in full and had set out their responses to Ms. Whelan’s argument; and • Ms. Whelan had filed a second set of legal submissions in response. 6 19. During the course of the hearing before me, Ms. Whelan intimated for the first time that she was on medication and was very nervous. No doctor’s certificate, however, was produced in this respect. In all the circumstances, I am satisfied that Ms. Whelan could not validly claim to be in any way impeded in arguing the matter on her own behalf. Rather, I am satisfied that Ms. Whelan had more than an adequate opportunity to fully understand the case against her and to prepare and speak to her detailed written legal submissions in response thereto. 20. Finally, I should say that it appears that, on 2nd November, 2023, Mr. Fardy personally issued a motion seeking liberty to join himself as a co-defendant to these proceedings. The affidavit grounding this motion sworn by Mr. Fardy does not state, as it should have done, that the substantive case had already been listed for hearing on 16th June 2023 or that same was listed for hearing a second time in very early course (on 7th November, 2023). The motion to join Mr. Fardy as a co-defendant was given a return date in the Chancery Summons list of Monday, 13th November, 2023. This motion was not served on Everyday who were only furnished with a photograph of the motion on Friday, 3rd November, 2023. Further, this motion does not appear to have been brought to the attention of Sanfey J. when the present case was called on for hearing on 2nd November, 2023. 21. Everyday objected to the motion to join Mr. Fardy both as regards its substance and its lateness. However, in the interests of completeness, I agreed to take the motion in and to consider it. It is apparent that the only purpose of the motion to join Mr. Fardy is to enable him to address the Court as a co-defendant. It is trite law that a plaintiff can choose the defendant whom it wishes to sue and cannot be compelled to sue a party whom it does not wish to sue. In this case, Everyday has chosen to sue Ms. Whelan and not Mr. Fardy. As Ms. Whelan is the sole owner of the property, this is an entirely appropriate course of action. 22. Notwithstanding all of this, on a purely de bene esse basis, I agreed that, in addition to reading and considering Ms. Whelan’s lengthy written submissions in response to the Everyday 7 submissions, I would hear argument from Mr. Fardy for 20 minutes. As matters transpired, Mr. Fardy addressed the Court for in the order of 40 or 45 minutes. In so doing, he rehearsed the points already made in the pleadings and in the two previous sets of written legal submissions. He did, however, make some new points which I will as necessary address below. 23. I fully appreciate that defending a case as a lay litigant is a difficult, daunting and stressful experience. It is very unfortunate that Ms. Whelan was not in a position to afford legal representation. Despite this, I am absolutely satisfied that Ms. Whelan and Mr. Fardy had a full opportunity to present their defence to the present application. In this respect, it is worth emphasising that the case advanced by Everyday had already been advanced on 16th June, 2023 and had also been fully articulated in their detailed legal submissions. Whilst, therefore, Mr. Fardy contended that he was disadvantaged in his advocacy, I do not accept that this is so. Registration and enforcement of judgment mortgages 24. The statutory scheme underpinning the registration of judgment mortgages is to be found in s. 116 of the Land and Conveyancing Law Reform Act 2009 (“the 2009 Act”) as follows:- “A creditor who has obtained a judgment against a person may apply to the Property Registration Authority to register a judgment mortgage against that person’s estate or interest in land.” Subsection (2) states:- “A judgment mortgage shall be registered in the Registry of Deeds or Land Registry, as appropriate.” 25. The papers before me illustrate that AIB duly registered the judgment as a mortgage against Ms. Whelan’s property the subject matter of these proceedings. The papers before me also demonstrate that Everyday is now the registered owner of the judgment mortgage. 8 26. Section 117 of the 2009 Act then provides as follows:- “Registration of a judgment mortgage under section 116 operates to charge the judgment debtor’s estate or interest in the land with the judgment debt and entitles the judgment mortgagee to apply to the court for an order under this section or section 31.” 27. Subject to the various points advanced by Ms. Whelan which I will consider below, Everyday is entitled, on foot of registration of ownership of the judgment mortgage, to seek an order for sale of the property pursuant to s. 31 of the 2009 Act. 28. Everyday also seeks further ancillary orders as set out in s. 117(2) of the 2009 Act which provides that the Court may make the following orders:- “(a) an order for the taking of an account of other incumbrances affecting the land, if any, and the making of inquiries as to the respective priorities of any such incumbrances, (b) an order for the sale of the land, and where appropriate, the distribution of the proceeds of sale, (c) such other order for enforcement of the judgment mortgage as the court thinks appropriate.” Issues raised by Ms. Whelan and this Court’s decision in relation to each said issue 29. It is somewhat difficult to understand the precise arguments advanced by Ms. Whelan in her affidavits and legal submissions. I will attempt, as best I can, to present Ms. Whelan’s arguments and to address each one seriatim. Ms. Whelan’s arguments in respect of the jurisdiction of the High Court 9 30. Ms. Whelan’s conditional appearance and affidavits assert that the High Court lacks jurisdiction to hear or determine this matter. This contention appears to arise from alleged infirmities in the “No. 5 Commencement Order for the Courts of Justice Act 1924”. 31. In a notice of motion filed on 30th May, 2022, Ms. Whelan seeks inter alia: “An Order that the purported lawful legislative vesting and/or transfer of the jurisdiction for the “new” Statutory High Court including the jurisdiction of the Master of the High Court as relevantly cited in section 8, section 14, and section 48 of the Courts Supplemental Provisions Act 1961, is inconsistent with and repugnant to Article 15.4.1 & Article 15.4.2 of the Constitution (1937) because it is derived from the transitory Article 58 “existing courts jurisdiction” which is an impossibility because no valid ORIGINAL No.5 Commencement Order for the Courts of Justice Act 1924 is in existence to prove commencement and enforcement of that 1924 Act” 32. Ms. Whelan’s contention appears to be that the Courts of Justice Act 1924 (“the 1924 Act”) was never commenced and thus never became operative. Consequently, it is said that all subsequent legislation is ineffective to (re)vest the Courts with any lawful jurisdiction. This argument is therefore similar to that dealt with in Coleman v Clohessy [2022] IECA 279. In Coleman v Clohessy, one of the defendant’s arguments was also that the 1924 Act was not commenced and that the purported transfer of existing jurisdiction to the new courts established by the Courts (Establishment and Constitution) Act 1961 as provided for by the Courts (Supplemental Provisions) Act 1961 Act was therefore “an impossibility”. 33. Collins J. found that this contention was misconceived. He noted that the Constitution of the Irish Free State, provided, inter alia, for the establishment by the Oireachtas of a new court system to exercise the judicial power of the Irish Free State and to administer justice. The Oireachtas subsequently enacted the 1924 Act for the purpose of establishing those new courts. The Act was passed on 12th April, 1924 and was to come into operation on such day or days as 10 may be fixed by any Order of the Executive Council. Collins J. noted that four orders appear to have been made by the Executive Council for the purpose of bringing the 1924 Act into operation, including the Courts of Justice Act, 1924 (Commencement) Order, 1924 (Order of the Executive Council No 5 of 1924) made on 4th June, 1924 (“Order No. 5”). 34. Collins J. noted that copies of these four orders, published by the Stationery Office, can be found in Statutory Rules, Orders and Regulations 1922–1938, also published by the Stationery Office. In addition, the orders were published in full in Iris Oifigiúil (also published by the Stationery Office). He noted that s. 4(1) of the Documentary Evidence Act 1925 provides that prima facie evidence of inter alia, any orders to which it applies, may be given in all Courts and in all legal proceedings by the production of a copy of the Iris Oifigiúil or by the production of a copy printed by the Stationery Office. Further, s. 5(1) of the Documentary Evidence Act 1925 provides that: “Every copy of an Act of the Oireachtas, proclamation, order, rule, regulation, byelaw, or other official document which purports to be published by the Stationery Office or to be published by the authority of the Stationery Office shall, until the contrary is proved, be presumed to have been printed under the superintendence and authority of and to have been published by the Stationery Office.” 35. Collins J. held that the combined effect of these provisions is that (a) production of a copy of the Iris Oifigiúil purporting to contain any order of the Executive Council made under s. 2 of the 1924 Act and/or (b) production of a copy of any such order which purports to be published by, or by the authority of, the Stationery Office, constitutes prima facie evidence of the order. Production of the original order is not therefore required to prove the order, at least in the absence of any contrary evidence. 36. Ms. Whelan has not identified any basis for suggesting that copies of “Order No. 5”, which Collins J. notes is contained in the Statutory Rules, Orders and Regulations 1922–1938, 11 all of which purport to have been published by the Stationery Office, were not in fact so published. 37. Collins J. also noted the profound implausibility of any suggestion that the Executive Council had failed to commence any part of the 1924 Act particularly as it was under a specific duty to do so within a period of 5 months. He observed that the new courts had gone into operation, with monies voted for that purpose by the Oireachtas. Countless litigants had invoked, and submitted to, their jurisdiction. Rules of Court had been made in purported exercise of the powers conferred by the 1924 Act. Collins J concluded that: “The fact – if fact it be – that the original of any of the commencement orders identified in paragraph 40 above cannot now be located does not establish that such order was not duly made. Even in the absence of the provisions of the Documentary Evidence Act 1925, the matters set out above suggest that all relevant parties proceeded on a common understanding that the 1924 Act had been brought into operation and seem to attest to the fact that commencement orders were indeed made in accordance with the requirements of section 2 of the 1924 Act”. 38. I therefore view Ms. Whelan’s argument in relation to the non-commencement of the 1924 Act as being without foundation. “Transitory” jurisdiction only- Article 58 of the 1922 Constitution 39. In a similar vein, Ms. Whelan’s pleadings and submissions repeatedly characterise the High Court as “the ‘new’ Statutory High Court” which somehow lacks lawful jurisdiction. 40. Ms. Whelan also asserts that this Court is operating under an “ultra vires jurisdiction for the old “existing Courts of Justice” under Article 8 as cited in section 7 of the Courts Establishment and Jurisdiction Act 1961.” This argument therefore appears to assume that this Court takes its jurisdiction from Article 58 of the 1922 Constitution, which related to the 12 continuation of the pre 1922 Courts. However, there is no substance to this. As Collins J. held that there is only one High Court, which has full and original jurisdiction arising out of Article 34.3.1 of the 1937 Constitution. The alleged voiding of the High Court judgment by Jack Fardy 41. In her affidavit filed on 14th June, 2023, Ms. Whelan avers that her husband, Jack Fardy, “voided the order of Mr. Justice Hedigan”, and posted a sworn and filed copy of the affidavit declaring the order void to the solicitors who had formerly been on record for AIB. 42. In his oral submissions, Mr. Fardy insisted that a void order is of no effect and could not be relied upon by Everyday, or by the Court in the present application. Mr. Fardy is convinced that he has legal power to invalidate a judgment of the High Court merely by affidavit. This is entirely incorrect. A party wishing to challenge an order of the Court must appeal same or must, in the alternative, bring an application to set it aside. In short, such a party must engage in the appropriate legal process, which has not occurred here. 43. Ms. Whelan and Mr. Fardy advance various rather vague criticisms of the unappealed judgment of 20th September, 2013. However, no specific grounds of invalidity are advanced. Nor is there any indication or justification as to why an appeal was not lodged in those proceedings. 44. In addition, neither have Ms. Whelan nor Mr. Fardy brought any application to set aside this judgment. Even if they had, the bar to do so is high. Simons J. recently examined the nature of applications to set aside final unappealed orders in Start Mortgages v. Simon Kavanagh and Deirdre Kavanagh [2023] IEHC 37. The Court noted that the jurisdiction to reopen a final judgment arises only in exceptional circumstances and, referring to the recent examination of the issue by the Supreme Court in Student Transport Scheme Ltd v. Minister for Education and 13 Skills [2021] IESC 35, noted the high weight attached to the principle of finality and the following two principles:- • The parties seeking to have a final order set aside must clearly establish a fundamental denial of justice against which no other remedy, such as an appeal, is available; • The exceptional jurisdiction does not exist to allow a party to reargue an issue already determined. 45. Had either Ms. Whelan or Mr. Fardy wished to challenge the correctness of the judgment of 20th September, 2013, then they were entitled to do so by lodging an appropriate appeal or by seeking to have same set aside. Having failed to do so, the judgment stands as the final and unchallenged order. Ms. Whelan cannot now seek to challenge the merits of same by inviting the High Court to fail to give effect thereto in the present case. In short, this Court cannot accede to the attempt by Ms. Whelan to invalidate the judgment in the context of the current proceedings. The alleged invalidity of the Irish law Deed of Transfer (“DOT”) 46. Ms. Whelan’s affidavit avers to “glaring issues of illegality” in relation to the Irish law DOT. However, whilst I mean no disrespect whatsoever to Ms. Whelan or Mr. Fardy, they do not in any remotely comprehensible manner identify what precise complaints are made in relation to the validity of the Irish law DOT. I regret to say that I cannot discern a stateable argument in relation to the contended for illegality or criminality. 47. For example, Ms. Whelan’s affidavits refer in a general manner to the Companies Act 2014, S.I. 60 of 2006 – Asset Covered Securities Act 2001 – and to the 1964 Act without citing or applying any section thereof or alleging any particular breach. Similarly, Ms. Whelan’s legal submissions refer to the Criminal Justice (Perjury and Related Offences Act) 2021 and the 14 Criminal Justice (Theft and Fraud Act Offences (Amendment)) Act 2021“amongst other laws and conventions” without explaining the relevance thereof. 48. It appears that Ms. Whelan and Mr. Fardy object to the fact that the Irish law DOT is redacted. However, as this was not a matter raised in the pleadings, the justification for the redactions is not an issue in the case. 49. In oral submissions made on behalf of Ms. Whelan by Mr. Fardy it was suggested that the execution page of the Irish law DOT does not properly relate to that deed but to the associated global deed of transfer and that, therefore, the Irish law DOT had not been properly executed. This argument appears to arise because the execution page of the Irish law DOT bears a notation at its foot which states “global deed of transfer” and not “Irish law deed of transfer”. It is not appropriate for a party in the position of Ms. Whelan or Mr. Fardy to simply raise such an issue during the course of the substantive hearing. This is all the more the case when the substantive hearing has, in fact, already been fully opened before the Court and no such objection was advanced. 50. There is, in any event, no validity to this point. Although described on its cover sheet as an “Irish law deed of transfer (excluding property)”, the Irish law DOT as exhibited has the same notation, “global deed of transfer”, at the foot of each page. Clearly, therefore, the Irish law DOT was one of a suite of agreements executed, all bearing the notation “global deed of transfer”. This is the obvious explanation for the notation at the foot of the page. 51. The court has before it evidence comprising sworn averments in respect of the transfer to Everyday of the entire interest in the facility and documentation which, in objective terms, is entirely consistent with those averments. In the absence of any evidence to the contrary, I am satisfied that the plaintiff has proved, on the balance of probabilities, that the loan to Ms. Whelan and Mr. Fardy and the related security comprising the judgment mortgage were transferred to Everyday. 15 Alleged invalidity of the 2008 and 2010 loan facilities 52. Ms. Whelan and Mr. Fardy on her behalf also seek to mount a somewhat unspecified challenge to the validity of the 2008 and 2010 credit agreements. A submission was made that Ms. Whelan had not been advised by AIB to take independent legal advice in concluding those credit agreements. 53. Fundamentally, however, such alleged invalidity is not an issue in these proceedings. Rather any such points were for argument in the context of the motion for liberty to enter final judgment forming the basis for the order and judgment of the 20th September, 2013. If these issues were argued indeed at that stage, then they are res judicata. Even if they were not argued, then they ought to have been. As Noonan J. pointed out in Fitzsimons v. Tanager & ors [2019] IECA 336, since Henderson v. Henderson (1843) 3 Hare 100, parties to litigation are bound to bring forward their entire case at the time when it is heard. Application of the Family Home Protection Act 1976 54. In her affidavit of 30th May, 2022, Ms. Whelan asserts that she did not “sign the required consent under section 3 of the Family Home Protection Act” consenting to dealings in certain identified property. However, it appears that the folio number referenced by Ms. Whelan concerns an entirely separate parcel of land to that forming the subject matter of these proceedings. 55. It is entirely clear that the property over which Everyday seeks relief is not a family home of Ms. Whelan and, as such, the 1976 Act has no application to these proceedings. Alleged invalidity of letter of demand 16 56. Counsel for the plaintiff accepts that the letter of demand in this case was for an amount greater than that for which judgment was entered on 20th September, 2013. As such it also seeks payment of an amount greater than that sought to be declared well charged in the proceedings. 57. This does not in my view disentitle Everyday to the relief claimed. 58. In the first place, I accept that a letter of demand is not necessarily invalid on account of a mistake in the amount demanded. Thus, in Flynn v. National Asset Loan Management Ltd [2014] IEHC 408, Cregan J. held that the letter of demand, even if it did overstate the amount due, was a valid letter of demand. 59. More compellingly, the letter of demand specifically references the judgment of 20th September, 2013 and there is no suggestion that Ms. Whelan has not at all times been aware of what is owed on foot thereof. Further, prior to the commencement of these proceedings, on 4th February 2022, the loan servicer, BCM Global ASI Ltd (formerly Link ASI Ltd), sent Ms. Whelan a statement of account setting out the precise amount now sought to be declared well charged. There has been no attempt to repay any amount whatsoever on the foot this judgment either before or after the letter of demand and/ or statement of account. Alleged non-compliance with s. 28(6) of the Judicature 1877 60. I am satisfied that the notice given to Ms. Whelan of the assignment of her loan and security complies with s. 28(6) of the Judicature 1877 Act, which provides: “(6) Any absolute assignment, by writing under the hand of the assignor (not purporting to be by way of charge only), of any debt or other legal chose in action, of which express notice in writing shall have been given to the debtor trustee or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be and be deemed to have been effectual in law (subject to all 17 equities which would have been entitled to priority over the right of the assignee if this Act had not passed,) to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same, without the concurrence of the assignor. . .”. 61. As observed by Heslin J. in Cabot Financial (Ireland) Ltd v. Hamill & anor [2023] IEHC 405, the 1877 Act does not make provision for who has to give the notice in writing of the assignment. In this particular case, notice in writing was given by the assignor, AIB, which, in my view, is entirely appropriate. A goodbye letter has been exhibited and, although no hello letter has been exhibited, it is clear from the papers that Ms. Whelan was at all times aware of the party to whom she ought to repay any amounts owing. Indeed, no suggestion is made to the contrary. Alleged invalidity of the special summons 62. Ms. Whelan alleges that the special summons is not properly issued as it was not signed by a solicitor. She states that the summons is “invalid and void” as “it is physically impossible for a non human being to sign any document”. This submission is also misconceived as is apparent from Order 4, rule 14 of the Rules of the Superior Courts which provides: “14. The solicitor of a plaintiff shall indorse upon the summons and notice in lieu of service of a summons, the address and occupation or description of the plaintiff and also his own name or that of his firm…” The Status of OSM Partners LLP 63. At paragraph 6 of her affidavit sworn 1st December, 2022, Ms. Whelan pleads that “OSM Partners LLP in breach of section 64 of the Solicitors Act 1954 which incorporates 18 reference to section 59, that in effect denies a Right of Audience to this aforementioned LLP firm of solicitors.” 64. Section 64 of the Solicitors Act 1954 (“the 1954 Act”) prohibits bodies corporate from acting in the capacity of solicitors. Section 59 prohibits a solicitor from acting as agent for an unqualified person so as to enable that unqualified person to act as a solicitor. 65. It appears that Ms. Whelan is alleging that OSM Partners LLP, acting as an LLP, is a body corporate/ unqualified solicitor which is holding itself out as a qualified person, such that OSM is acting in contravention of the 1954 Act. 66. Once again Ms. Whelan is mistaken. OSM Partners LLP is a limited liability partnership (LLP). LLPs are a business model commonly utilised by law firms both internationally and in the State, for which provision is made in the Legal Services Regulation Act 2015. Ms. Whelan has therefore failed to make out any basis upon which LLPs are not entitled to operate as law firms. Conclusion 67. In this case, it is not disputed that the funds were drawn down pursuant to the relevant facility letters. Nor is it disputed that the funds were not repaid as agreed. It is common case that no amounts have been paid on foot of the judgment entered on 20th September, 2013. It is not disputed that the amount of €236,246.99 is due and owing. No error is asserted in the calculation of the sum claimed. The folio demonstrates that the property the subject matter of these proceedings is in the sole ownership of Ms. Whelan. It is not contended that the property comprises either a family home or a shared family home of Ms. Whelan and Mr. Fardy within the meaning of the Family Home Protection Act 1976 or within the meaning of s. 27 of the Civil Partnership and Certain Rights of Cohabitants Act 2010. It is not disputed that Ms. Whelan resides at a different address to that registered on the folio pertaining to this property. 19 There is an unappealed judgment against Ms. Whelan and Mr. Fardy in the amount sought to be well charged. 68. I am satisfied that Everyday has proved, on the balance of probabilities, that the loan to Ms. Whelan and Mr. Fardy and the related security comprising the judgment mortgage were transferred to Everyday. I am satisfied that Ms. Whelan was appropriately advised of the transfer of the credit agreement and security comprising the judgment mortgage to Everyday, in accordance with the 1877 Act. 69. Crucially, the folio in respect of the property contains an entry registering the judgment on the interest of Ms. Whelan as a burden on the land and noting that Everyday is the owner thereof. This registration of Everyday’s ownership of the judgment mortgage has not been disturbed by any order of the Court in rectification proceedings or otherwise. 70. In this respect, s. 31(1) of the 1964 Act provides as follows: “31.— (1) The register shall be conclusive evidence of the title of the owner to the land as appearing on the register and of any right, privilege, appurtenance or burden as appearing thereon; and such title shall not, in the absence of actual fraud, be in any way affected in consequence of such owner having notice of any deed, document, or matter relating to the land; but nothing in this Act shall interfere with the jurisdiction of any court of competent jurisdiction based on the ground of actual fraud or mistake, and the court may upon such ground make an order directing the register to be rectified in such manner and on such terms as it thinks just.” 71. In Tanager DAC v Kane [2018] IECA 352, [2019] 1 I.R 385, Baker J. (with whom Peart and Whelan JJ. agreed) stated that: “A plaintiff seeking an order for possession must adduce proof, inter alia, that he or she is the registered owner of the charge. It is registration that triggers the entitlement to seek possession. In those proceedings, the court may not be asked to go behind the 20 Register and consider whether the registration is, in some manner, defective. In the possession proceedings, the court must accept the correctness of the particulars of registration as they appear on the folio, because the statutory basis for the action for possession is registration. This is one consequence of the statutory conclusiveness of the Register, and of the statutory limits to rectification.” 72. Accordingly, in consequence of the statutory conclusiveness of the register, and of the statutory limits to its rectification, the Court may not, in possession proceedings, “look behind” the register. Further, although Tanager v Kane was decided in the context of an action for possession, its ratio applies more broadly. In particular, it undoubtedly applies to proceedings such as the present in which a well charging order is sought. 73. In these circumstances, Ms. Whelan has no entitlement in the present proceedings to challenge this registration and further Everyday has a statutory entitlement under the 2009 Act to apply for the reliefs sought in these proceedings. 74. In all the above circumstances, Everyday is entitled to an order declaring the amounts sought well charged on the property. 75. Everyday also seeks certain consequential orders, including, an order for sale of the property. In Quinns of Baltinglass Ltd v. Jim Smith and June Smith [2017] IEHC 461, Keane J. noted that in Drillfix Ltd v. Savage [2009] IEHC 546 and in Irwin v. Deasy [2011] 2 IR 752 Dunne J. and Laffoy J. respectively, reached the same conclusion: namely that once the Court is satisfied that the proofs necessary to grant such relief are otherwise in order, the onus is on a defendant to satisfy the Court that good reason exists for not ordering a sale. Nowhere in the replying affidavits of Ms. Whelan are there any factual issues raised as to the entitlement of Everyday to seek orders for sale in respect of the property. Specifically, matters which would fall for consideration if the lands at issue were a family home do not arise where those lands are instead used for other purposes. In addition, Ms. Whelan has not provided any evidence 21 concerning her means, the value of the property (or of other property owned or jointly owned by her); the value of the debts charged on the property (or of other debts charged on other property owned or jointly owned by her) and no averment is made that she could otherwise discharge the judgment mortgage amount. 76. I have considerable sympathy for Ms. Whelan and Mr. Fardy; and it gives me no pleasure to determine this case against them. However, for the reasons articulated above, I cannot but be satisfied that it is just and equitable to declare the amounts sought well charged on the property and to hold that, in default of payment, the amount outstanding shall be satisfied by the sale of the property.