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1. In these proceedings, the Plaintiff claims an Order for Possession of the lands and premises comprised on Folio 58478 of the Register of Freeholders, County Cork, pursuant to Section 62 of the Registration of Title Act, 1964.

2. The proceedings were initiated by Special Summons issued on 18th May, 1995 and were grounded on the Affidavit of Martin O'Brien, a manager of the Plaintiff, sworn on 21st June, 1995 in which the following facts were averred to, namely:-

3. The Mortgage, which was exhibited in the Grounding Affidavit of Martin O'Brien was in the form of the Plaintiff's printed form of collateral mortgage. It was dated 7th December, 1992 at the commencement. There was endorsement thereon in the following terms, which was also dated 7th December, 1992:-

4. The endorsement was signed by Marie Treacy (Mrs. Treacy) and her signature was witnessed by N. O'Keeffe, Solicitor, Cork. Immediately following the foregoing consent, there was a certificate, which was also dated 7th December, 1992 in the following terms:-

5. The Defendant, through his Solicitors, entered an appearance on 14th May, 1996. However, the Defendant has not filed any Affidavit in response to the Plaintiff's claim and did not appear and was not represented at the hearing of the Plaintiff's application.

6. When the matter came before the Court for hearing, it being apparent that the lands registered on Folio 58478 of the Register of Freeholders, County Cork, were the premises known as "Villa Saleen", Church Road, Carrigaline, County Cork, which was the family home of the Defendant and his wife, Mrs. Treacy, the Court directed that notice of the proceedings be given to Mrs. Treacy.

7. In response to the notice, Mrs. Treacy filed an Affidavit in the proceedings, which was sworn on 22nd July, 1996. In this Affidavit, Mrs. Treacy averred that she had never been involved in the administration of the Defendant's business and that all major business decisions in relation to the business were taken by the Defendant. She did understand that he had obtained loans in the past from the Plaintiff but, as far as she were aware, these never affected her family home. She first became aware of the true nature of the proceedings when she received a letter dated 9th July, 1996 from the Plaintiff's Solicitors. At no stage was she aware that her family home was being used as security by the Defendant for the purposes of his business dealings and she was not aware of the fact that a mortgage had been granted nor of the implications thereof. She went on to aver as follows:-

8. Later in the Affidavit, she averred as follows:-

9. She then went on to set out certain facts which she averred she understood gave her an entitlement to a beneficial interest in the premises and prayed for an adjournment of these proceedings until the extent of her beneficial interest had been determined.

10. In response to Mrs. Treacy's Affidavit, Francis D. Daly, the Plaintiff's Solicitor, swore an Affidavit on 27th September, 1996. In broad outline, the thrust of this Affidavit is that Mr. Daly's firm, Ronan Daly Jermyn, was instructed by the Plaintiff to act on the Plaintiff's behalf in relation to the loan transaction between the Plaintiff and the Company on 2nd December, 1992 and was instructed that the loan cheque was urgently required. On the same day, Mr. Daly wrote to Messrs. Coakley Maloney, the Solicitors for the Company and the Defendant, advising them that the latter's Report on Title would be relied on in the transaction. Subsequently, Mr. Daly was furnished with the title to "Villa Saleen" showing the Defendant registered as sole owner and the following documentation:-

11. Relying on the good faith of the Defendant, Mrs. Treacy and Messrs. Coakley Maloney, who appeard to be acting on behalf of both the Defendant and Mrs. Treacy, and in accordance with usual conveyancing practice, upon receipt of the executed security documents, a partial disbursement of the loan in the amount of £45,000 was made on 7th December, 1992 and the balance of the loan was subsequently advanced.

12. Mrs. Treacy has filed a Supplemental Affidavit sworn by her on 11th October, 1996 in the proceedings in response to Mr. Daly's Affidavit. In this Affidavit, she averred that her position was that she had not been properly or adequately advised in regard to the transaction between the Plaintiff and the Defendant. Apropos of the statutory declaration of 7th December, 1992, she averred that she was in no way advised as to the implications of that documentation nor the legal implications of signing the same and she was not advised with regard to her entitlement to the family home. She further averred that she had instituted proceedings in this Court claiming determination of her beneficial interest in the premises and she exhibited a copy of the Special Summons and the Grounding Affidavit sworn by her in the proceedings, which are entitled Marie Treacy -v- Dermot (otherwise Derry) Treacy and ICC Bank Plc (Record No. 1996 No. 507 Sp).

13. The question which now arises for decision is whether the Plaintiff is entitled to an Order for Possession as mortgagee under the Mortgage on the basis of the affidavit evidence outlined above or whether there are matters of fact in dispute which can only be resolved on a hearing on oral evidence.

14. In my view, the circumstances which arise here are not materially distinguishable from the circumstances which were under consideration by the Supreme Court in Allied Irish Banks -v- Finnegan , (1996) 1 I.L.R.M. 401. In that case, the Plaintiff bank was seeking possession of the family home of Mr. and Mrs. Finnegan as mortgagee under a mortgage. Mr. Finnegan did not defend the proceedings but Mrs. Finnegan, who had been joined as a defendant after the proceedings had been instituted, did defend on the basis of facts outlined in two Affidavits sworn by her. In particular, she averred that she signed a form of consent to the mortgage given by her husband to the bank in the belief that it was an essential document required to ensure that the family home they were purchasing would be put into their joint names, she did not receive any legal advice or any advice whatsoever and she was not informed that the form constituted her consent to her husband creating a mortgage in favour of the bank of her family home. Mrs. Finnegan's account was disputed in an Affidavit sworn by Mr. Finnegan's Solicitor. In the Supreme Court, Blayney J. pointed out that this gave rise to a clear dispute of fact as to the circumstances in which Mrs. Finnegan signed the form and the issue of the validity of the consent would depend on how the dispute was resolved.

15. In this matter, there is only one version of the circumstances in which the consent to the Mortgage was executed by Mrs. Treacy - Mrs. Treacy's version - which impugns the validity of the consent. It seems to me that, on the authority of Allied Irish Banks -v- Finnegan , the issues as to the validity of the Mortgage which have been raised by Mrs. Treacy can only be resolved on oral evidence.

16. Accordingly, I propose making an Order that Mrs. Treacy be joined as a Defendant in the proceedings and that the following issues be tried on oral evidence, namely:-

17. I do not consider it is necessary to address the separate issue raised by Mrs. Treacy, namely, that she may have a beneficial interest in "Villa Saleen". If the Plaintiff has a valid Mortgage, then following the approach adopted by Blayney J. in Allied Irish Banks -v- Finnegan at page 406 and on the basis of the decision of the Supreme Court in Doherty -v- Doherty (1991) 2 I.R. 458, the Mortgage cannot be affected by such beneficial interest.