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Neutral Citation [2016] NICh 11 Ref: HOR10036

Judgment: approved by the Court for handing down Delivered: 20/09/2016

(subject to editorial corrections)*

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

________

CHANCERY DIVISION

________

IN THE MATTER OF PREMISES SITUATE AND KNOWN AS

23 ANNA’S GROVE, NEWTOWNABBEY, CO ANTRIM, BT36 4PQ

Between

MARK DEERY

Plaintiff

and

JAMES DEERY

First Named Defendant

and

LAURA GRAHAM

Second Named Defendant

________

HORNER J

A. INTRODUCTION

[1] The issue between the parties in this case is whether the failure to include a

Penal Notice in an agreed order requiring the defendants to do an act within a

specified time, namely vacate forthwith 23 Anna’s Grove, Newtownabbey,

Co Antrim (“the Premises”) precludes the plaintiff from seeking to re-serve the order

with a Penal Notice attached in accordance with Form No:67 of Appendix A of the

Rules of the Supreme Court (NI) 1980 and enforcing the order by committal under

Order 52.

[2] It appears that in an increasing number of cases plaintiffs are obtaining orders

for possession under Order 113 but failing to include a Penal Notice in the original

order. An application then has to be made subsequently seeking to have the original

order amended and asking for leave to re-serve the order.

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B. BACKGROUND FACTS

[3] On 19 June 2015 the plaintiff issued proceedings against his brother,

James Deery (“D1”) and D1’s partner, Laura Graham (“D2”) and persons unknown,

namely the children of D1 and D2 who were occupying the Premises. The Premises

had been registered in the name of the plaintiff on 20 August 2009. Apparently, D1

the plaintiff’s eldest brother, had suggested that the plaintiff purchase it and that D1

would pay the monthly mortgage instalments and the deposit, together with all the

associated expenses such as stamp duty, legal costs, rates, insurances and utility

bills. D1 and D2 would then reside there with their four children. The plaintiff

claims that he was pressurised into entering into this arrangement. D1 says that no

pressure was applied and that the plaintiff received a £2,000 fee for so acting. D1

arranged for solicitors to be instructed and the plaintiff, according to his evidence,

played little role in the transaction.

[4] In or around 2013 the plaintiff received correspondence from HMRC

complaining about a failure to pay stamp duty and threatening legal action. D1

promised to discharge this debt. In 2014 the plaintiff learned that money was due to

the Land and Property Services (Rating) (LPS) in respect of rates for the property

which had not been discharged. The LPS agreed to transfer the responsibility for

paying these rates to D1 and D2 who were occupying the premises.

[5] At the same time, on contacting the mortgagee, the plaintiff learned that the

mortgage was £1,200 in arrears. By July 2014 over £6,500 was due in connection with

the mortgage. The plaintiff paid £2,400 to Santander in respect of these mortgage

arrears in September 2014. In August 2014 D1 did agree to market the property for

sale at £190,000, the value placed on it by Ulster Property Sales. Offers were made

but D1 and D2 would not leave. The Premises are currently valued at £200,000 and

the amount due under the mortgage was £161,465.47 when proceedings were

initially issued.

[6] The plaintiff served Notices to Quit on D1 and D2 on 28 January 2015.

Proceedings followed under Order 113. D1 and D2 initially took the point that this

was not the appropriate way to proceed, D1 claiming that he was a tenant, paying a

rent and that the proceedings were misconceived. However, this argument seems to

have been abandoned. A joint consultation took place on or before 14 September

2015.

[7] D1 and D2 claim that they have spent very substantial sums in capital

improvements to the Premises. These include money spent on flooring, ti