About this case:

• Citation:
  [2020] IEHC 34
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

Finding that BOI had failed to establish that the woman was indebted to it in circumstances where she made serious allegations of fraud against her estranged husband and BOI, Mr Justice Garrett Simons said that BOI had failed to discharge the onus of proof, and set aside the Circuit Court’s order for possession.

Background

The defendants, Heather Cody and Peter Cody, are the registered owners of a property in Gorey, County Wexford. Mr and Mrs Cody were registered as the full owners in November 1998 and the property was their principal private residence (i.e. the family home). However, Mr and Mrs Cody have separated and the home is now occupied by Mrs Cody and her children.

Bank of Ireland Mortgage Bank submitted that monies are owed to it pursuant to loan agreements allegedly entered into by both Mr and Mrs Cody in October 2005. The repayment of this debt was apparently secured against the family home, and in December 2007, a charge (owned by BOI) was registered as a burden on the property.

In circumstances where Mr and Mrs Cody defaulted on the loan agreements, in June 2016, BOI made a demand for repayment of the monies owed.

The loan agreements

BOI advanced a total of €650,000 under the terms of two loan agreements.

The terms and conditions of the first loan agreement, for the sum of €350,000, was set out in a letter dated 8 September 2005.

Mr Justice Simons said “[o]ne of the curious features of the loan offer letter is that it is addressed to Mr Peter Cody and Mr Heather McMillan at an address other than what was then their family home” he explained that the address stated on the letter was the business address of James Cody & Sons (the firm of solicitors in which Mr Cody was then a partner). The loan agreement was signed on 24 October 2005 and appeared to bear the signature “Heather” – however, the surname was illegible.

Mrs Cody complained that the documentation regarding the loan agreements, particularly subsequent bank statements, were not sent to her home address. Mrs Cody also suggested that the addressee “Mr Heather McMillan” was a “fictitious third party” and not a reference to her – however, Mr Justice Simons was not convinced by this argument.

The second loan agreement was dated 24 October 2005, again addressed to Peter Cody and “Mr Heather McMillan” at James Cody & Sons solicitors.

Further, Mr Justice Simons said that it was not clear on which date the payments were said to have been made, but that it “might be inferred from the bank statements that the moneys were advanced n January 2006. He added that no explanation was provided for the lapse of time between the execution of the agreements and the execution of the mortgage in January 2007.

Circuit Court

BOI made an application for an order for possession pursuant to section 62(7) of the Registration of Title Act 1964 (which continues to apply in respect of mortgages created before 1 December 2009).

In the Circuit Court, Mrs Cody argued, inter alia, that:

• The mortgage was undertaken as part of a systemic fraudulent practice between 1990 and 2018 wherein mortgages were created in her name without her knowledge or consent;
• Between 1990 and 2010, BOI witnessed her signature when she was not present;
• Between 1990 and 2010, staff of James Cody & Sons witnessed her signature when she was not present.

Choosing to neither engage with Mrs Cody’s allegations nor apply to cross-examine Mrs Cody, BOI said there was nothing in her affidavit disclosing a defence in law to its claim.

In February 2019, the Circuit Court granted an order for possession to BOI. The Circuit Court did however order a stay on the execution of that order for fifteen months.

High Court

Appealing against the order of the Circuit Court, Mrs Cody’s principal argument was that the mortgage on her family home was created in her name (and that of her estranged husband) without her knowledge or consent.

Given the nature of the allegations made by Mrs Cody, Mr Justice Simons said BOI could not “simply rely on its having exhibited copies of the disputed loan agreements as discharging the onus of proof which lies on it as plaintiff”. He said that, at a minimum, BOI should have applied to the Circuit Court to cross-examine Mrs Cody. Mr Justice Simons said that the consequence this failure to cross-examine Mrs Cody on her allegations before the Circuit Court, was that, in considering the appeal, the High Court was “not in a position to make a definitive finding that [Mrs Cody] is indebted to [BOI] in respect of the two loan agreements”

Mr Justice Simons explained that, as the moving party under section 62(7) of the Registration of Title Act 1964, BOI carried the onus of proof – but that it had “failed to establish the necessary proofs to allow the Court to make an order for possession”.

Specifically, BOI failed to prove that Mrs Cody executed the two loan agreements it relied upon, and that without proving that Mrs Cody was indebted to BOI, an order for possession could not be made.

Allowing Mrs Cody’s appeal, Mr Justice Simons set aside the Circuit Court order.

Regarding separate plenary proceedings brought by Mrs Cody (against Mr Cody, James Cody & Sons, and BOI), Mr Justice Simons said that if Mrs Cody sought “to maintain the position that she is not bound by the two loan agreements of October 2005, then the plenary proceedings should be subject to case management by the court”. He commented that the allegations made in those proceedings were “very serious”, that the outcome may have implications for Mrs Cody’s continued occupation of the family home, and that it “would be in everyone’s interest to have those proceedings resolved—one way or another—in short course”. Adjourning the matter, Mr Justice Simons said he would “hear submissions as to the appropriate directions to be given in order to ensure an early hearing”.