This article is taken from THE PHOENIX MAGAZINE, IRELAND - OCTOBER 9, 2015
In courts across the country, a lender called Vivier Mortgages Ltd (VML) has been keeping plenty of lawyers busy, as it steps up repossession cases against punters who took out loans years ago and who have been whacked with exorbitant interest rates. VML is the new name for lender, Home Funding Corporation Ltd (HFC), where the principal was convicted British fraudster, Ian Leaf. The VML boss is Italian-born South African, Luigi Wewege (30), who spent some time in New Zealand, where he made an impact through a racy political scandal in 2013.
VML says that the new directors and owner of the company are "entirely distinct" from its previous owner. How did an urbane South African end up as the managing director of a subprime lender in Ireland? The story of HFC involves a web of characters and companies in the UK, New Zealand and elsewhere, but it begins in Ireland in 1997 when HFC was set up.
Most of its clients were cash-strapped farmers with poor credit ratings. As an unregulated entity, not subject to the Central Bank's code of conduct, HFC could impose penal interest rates on borrowers if they had missed a payment. In a repossession case heard in Clare earlier this year, the County Registrar described as "immoral" the interest rates imposed on a farmer, whose 26-acre farm the company was seeking to repossess. Since 2013, the company has issued around a dozen High Court actions against borrowers, in addition to various taking various Circuit Court cases.
Ian Leaf was the initial owner of HFC. He lived in Switzerland but was convicted in the UK in 2005 of defrauding the Taxman out of £54m, for which he was sent to prison. He was released in 2008 (and later changed his name to Ian Andrews) and his assets, including HFC, were subject to a UK confiscation order to be implemented by a UK receiver. In 2011, the company was sold by the receiver to another entity, City Corporation Ltd. One of the principals in City Corporation was Laurence Hamilton, a business associate of Leaf's, while the other was UK businessman Richard Ashken, also a Leaf associate.
Wewege entered the picture in March 2014, when he joined the HFC board. Two Irish directors — Thomas Daly and Joan Donnelly, both from Dublin — joined the VHF board later that year. The Dublin law firm, Crowley Millar, had been on record for VML in the various repossession cases. (The firm's partner, John Carroll, told Goldhawk it ceased to act for the company after a programme from RTE's Investigations Unit was broadcast in February.) At some stage after September 2013, shares in HFC were transferred from City Corporation into Wewege's name and in August 2014, HFC changed its name to VML. Leafs involvement in HFC was the subject of the RTE programme.
Shortly after the programme was broadcast, Wewege and VML lodged proceedings in the High Court against RTE. The company says that the "proceedings are for defamation, procuring a breach of confidence, malicious falsehood and other wrongs. VML says "the true position... ignored by RTE" was that in 2004, the company effectively came "under the control of the British government." It said that in 2011, the British government (ie. the UK receiver) then sold the company to an "English private company." (This is a reference to City Corporation.) It also stated that in 2014, that English entity sold the company "to its present owner" which is "entirely distinct from the previous owners and directors."
Wewege told RTE. that Leaf acted as a "consultant" for City Corporation after it took over HFC in 2011. But court documents obtained by Goldhawk, as part of a case in 2013 in which HFC was suing its former solicitors, Lyons Kenny, suggest Leaf had a much more active role in the company. (The case against Lyons Kenny concerned a dispute over fees and was later struck out.) In an affidavit, solicitor Barry Lyons of Lyons Kenny referred to Ian Andrews (Leaf s new name) as "the principal behind" HFC. Lyons also exhibited emails sent around September/October 2012 showing that at that stage, Leaf/Andrews was involved in the management of the company, through discussions with solicitors at Lyons Kenny concerning legal fees, invoices, etc.
One of the unsatisfied charges against the company's assets (registered in May 2012) is in favour of Swiss resident Caroline Naylor, Leaf's second wife. (He has since remarried.) Another unsatisfied charge registered at the time is in favour of a UK company, Sons of Cursitor Ltd, which is owned by Laurence Hamilton, who also served on the HFC board from 2013 until last January. Wewege declined to tell Goldhawk how he first came into contact with City Corporation. However, Richard Ashken and Leaf/Andrews were active in Auckland, New Zealand, for a spell around 2011, the same year Wewege arrived in that city. Records with the New Zealand Companies Office show that in that year, Ashken set up a company called City Savings Institution Ltd in Auckland. (City Corporation owns this company's shares). The presenter of a company document to the Companies Office that year is listed as "Ian Andrews."
While Ashken and Leaf/Andrews were setting up shop in Auckland, Wewege was making a name for himself in political scenes as a mover and a shaker. The smooth talking South African was quite a networker and became campaign organiser for a politician named John Palino, of the right-leaning National Party, who was seeking election as Mayor of Auckland in 2013. In the course of the campaign, a story emerged about Palino's rival, incumbent Mayor Len Brown of Labour, having a two-year affair with a much younger woman, Bevan Chuang, an associate of Wewege's. Chuang claimed that Wewege had pressurised her into going public with the Brown affair, a claim he denies. Wewege left New Zealand after the Len Brown scandal in October 2013 and spent some time in the US, but re-emerged in New Zealand last year when he joined the board of a New Zealand company, Vivier & Co, which is related to VML. A New Zealand businessman, Michael Hart (72) —who worked with Wewege on John Palino's failed mayoral election bid — holds all the shares in Vivier & Co.
Wewege didn't respond to a query from Goldhawk about how he funded his purchase of HFC in 2014. ("The insinuations behind your questions are defamatory," he said. "If you repeat any of them, my company and I will not hesitate to sue.") Perhaps a fuller explanation might become apparent in the course of his defamation action against RTE?
This company was first set up as "home funding corporation" by a very popular british tax thief "ian andrew leaf" who is now known as "ian andrews". Later the name was changed to "vivier mortgages limited" and subsequently to "elstree mortgages limited". The central bank of ireland has still not allowed the registration of this company as a mortgage provider.
Watch the documentary by rte here - https://www.Rte.Ie/news/player/2015/0205/20723428-rte-investigations-unit-the-loot-the-loans/
This is what the irish journalist "conor ryan" wrote about ian leaf in 2015, when it cam to light that ian leaf was still controlling the company. In 2019 it was again exposed that ian leaf Now ian andrews) was managing elstree mortgages along with kevin macleod who was also a famous fraudster and changed his name from kevin james steele to kevin macleod.
Ian leaf has a new name and is out of prison, but a convicted fraudster who cheated british taxpayers out of £76m is back and doing business in ireland, says investigative correspondent conor ryan
Out of jail and with a new name, a playboy tax cheat, ian leaf, is back working with the subprime lender he established here at the height of his international fraud business.
Fifteen years ago, from a mansion in the swiss alps, leaf Pictured left) ran a sophisticated scam, juggling money across the world and using it to cheat british taxpayers out of stg£76m.
His funding involved fraudulent documents drawn from a bank he set up on a pacific island that is smaller than killarney’s lough leane and where less than 10,000 people live.
During the 1990s, leaf, 59, lived an extraordinarily lavish lifestyle. His complex business model took years for the tax authorities to unravel.
They delved into dozens of companies: he used 13 firms to falsely declare losses and reclaim corporation tax he was not due.
When he was convicted, in 2005, the cost of his crimes was stg£76m; £55m in lost taxes and £22m in reclaimed taxes.
Leaf has since served his time and changed his name to ian andrews.
Leaf/andrews’ empire began to dissolve five years before his conviction, when his private jet stopped for a shopping trip in rome and he was arrested on an international warrant.
This was not before he had spread his tentacles across the world. His enterprise involved setting up an irish company with an eye on the unlicensed, subprime lending market.
Home funding corporation was established in 1997 by leaf/andrews. It was funded through an investment vehicle based in the bahamas. The firm had different directors, but the company accounts noted that these people did not know the controlling party.
Home funding corporation has changed hands, but is still in operation. It has acquired high-interest, subprime loans, mostly linked to farm land, from other unlicensed lenders in ireland.
When it last filed accounts, the company had €17.7m worth of loans on its books, including the outstanding interest due. The value of the loans had grown from €14.4m in 2010.
But the firm has made provisions for €12m worth of possible bad debts within its loan book. It did €3.3m worth of business in ireland in 2011.
The company is involved in a number of cases in the irish courts, where it is seeking to take ownership of farms that were offered as security for the subprime loans.
But home funding corporation is also defending actions in which borrowers are disputing the claims the company has made to the title. Home funding corporation, which is under a new owner, said it has numerous clients and is not at liberty to discuss their accounts.
The irish examiner has spoken to a number of the borrowers involved.
At the start of last year, home funding corporation had two directors, who were paid €60,000.
Neither of these were leaf/andrews.
According to the accounts, the controlling party for home funding corporation was london-based accountant and director, richard ashken, 60. According to company records, he joined the board in 2011.
Mr ashken is also the chairman of home funding corporation’s parent group, city corporation. It runs financial institutions in britain, ireland, and new zealand.
The fact that leaf/andrews is back working with home funding corporation has not been known. When he was contacted this week, he said the person named ian leaf did not exist.
Leaf/andrews’ low-key presence is a marked difference from the lifestyle he enjoyed before his arrest.
Playboy fraudster
Leaf/andrews developed an outwardly successful business as a specialist car salesman, after he qualified as a chartered accountant. He sold his dealership in the early 1980s and used the profits to move to other ventures.
With his first wife, he had a son and a daughter.
In 1987, he and his second wife relocated to a mansion in geneva. From there, he built up an empire crowned with two private jets and a garage of luxury cars.
After one of his court appearances, the daily mirror newspaper reported that his jets were used to keep hair appointments in britain.
Another article noted that he secured a phone number beginning with james bond’s signature code, 007.
Leaf/andrews was first arrested on an interpol warrant, in 2000, when he landed his private jet in rome and produced an out-of-date passport. The warrant was triggered and he spent the next nine months in jail, awaiting a ruling. Before this was delivered, he was allowed a temporary release.
He took a train to northern italy, hired a guide, hiked across the alps, and returned to switzerland, where he moved to a secluded mansion at verbier, in the alps.
From the alpine tax-haven, he fought extradition back to britain. The authorities succeeded in repatriating him when fraud charges were also tabled. While a warrant was out for his arrest, leaf/andrews was living in his lavish mansion and was married to his third wife, dominique forsberg.
Ms forsberg was sweden’s miss universe entrant in 1994.
Leaf/andrews eventually returned to britain, in 2004, and was convicted the following year.
He was sentenced to 12.5 years in jail, but this was reduced to 10 years on appeal. He had served time awaiting his trial and he was also entitled to early release, under licence.
The crimes he was charged with covered a date range in the early 1990s. This was before the home funding corporation was set up in ireland.
The crimes involved the purchase of loss-making companies and the transference of their tax liabilities from other firms that he owned. Corporation tax could be claimed back from the then inland revenue.
The scam was facilitated through fictitious documents generated from a bank registered in the pacific island of nauru. The bank was controlled by leaf/andrews and it loaned huge sums of money to his other companies.
In 2005, the revenue compliance director, dave hartnett, said it was a very complex scheme that leaf/andrews hoped to operate, without detection, from switzerland.
“leaf Andrews) believed that by leaving the uk he could escape justice, but he was wrong. We will seek to bring to justice anyone who sets out to line their own pockets at the expense of honest taxpayers.
“this was a multimillion-pound crime and the sentence reflects the seriousness of his offences,” he said.
Setting up in ireland
The home funding corporation was established in ireland in 1997, when leaf/andrews secured the assistance of another subprime lender, ronald weisz.
Mr weisz was living between britain and ireland, at the time.
However, two years earlier he had pleaded guilty to a fraud charge in new york, for which he was fined and placed on probation. Mr weisz said he was never a shareholder or investor in the home funding corporation.
Mr weisz said when the englishman wanted to set up in ireland he helped him, and his son jarrod, to get established.
Mr weisz said he also sold mortgages, which had been taken out with his own wise mortgage company ltd, to home funding corporation.
Mr weisz said this practice, securitisation, was routine among financial institutions. He also sold loans to other companies.
Mr weisz’s fraud conviction was on a smaller scale.
An arrest warrant had existed for a long time and, in 1995, he struck a deal with the fbi to return to america, where he could be arrested at jfk airport.
He pleaded guilty to one of five charges that had been brought against him.
These related to the supply of fraudulent information to secure a loan from a bank in the late 1970s. A statement from the home funding corporation said that it was no longer connected to the wise group of companies.
“mr weisz acted for the company when it was established in the 1990s, but his involvement with it ceased well over a decade ago,” it said.
Mr weisz said he has had not dealings with the home funding corporation for a number of years and had only worked with leaf/andrews.
Mr weisz said he did not know any of its current directors or owners.
The irish business
At the end of 2011, there were more than €17m worth of loans booked with the home funding corporation. It has been established, through the customers themselves or from court filings, that a number of these were acquired from mr weisz.
Documents filed with the companies registration office list more than 40 individual mortgages held by home funding corporation. Most of these were taken out between 1997 and 2000.
These were all the subject of charges held by a swiss-based private lender and another private financier in britain.
The charges covered all the loans and all the interest due on the loans.
One of the loans involves a tipperary farmer who borrowed €80,000 from wise finance company in 1997; security was given on three associated properties. One of these properties was seized four years later; another loan was given to clear the balance. This loan was then sold to home finance corporation.
Before that, an agreement was struck for the borrower to sell his land to cancel out the debt, which by then had risen to €165,000.
However, the borrower subsequently took separate proceedings and claimed that the 2001 agreement was struck under duress and undue influence.
This case is still before the courts. The wise finance company and the home funding corporation are co-defendants.
Documents from another borrower, which are tied to land in north cork, were also seen by the irish examiner.
These show that a disputed loan, with a principal of less than ir£40,000, now stands at more than €500,000.
Interest statements show that the balance has grown by more than €100,000 in the last year.
Home funding corporation used to share the same solicitor as mr weisz, but this is no longer the case.
Home funding corporation is currently represented by lyons kenny solicitors in dublin. Its office, at no 57, fitzwilliam square, is also the registered address and contact point for debtors of home funding corporation.
A statement from lyons kenny partner barry lyons said it could not comment on leaf/andrews’ past. “as you are aware, we are a firm of solicitors. We provide commercial legal services for home funding corporation limited, and over 3,000 other clients. You will appreciate we are not at liberty to discuss the business of individual clients. Any queries in relation to the trade of home funding corporation should be addressed to the company directly,” it said.
Reacquainted with the company
On dec 16, 2008, leaf changed his name by deed poll. A acknowledgement of this appears in the london gazette.
It said ian andrew leaf, of no 6, allerton court, turnberry close, london, abandoned his old name and assumed the name of ian andrews. Leaf/andrews’ return to normal life was not easy. After his release from prison, he was subjected to a travel ban, although he appealed this through the courts.
He told the court he had been a model convict, who used his expertise to help the authorities improve their systems.
Leaf/andrews described his time in brixton as akin to the experience of the main character in the shawshank redemption, where the inmate worked as a private accountant for his jailers.
In recent years, leaf/andrews fought attempts by the revenue to have him repay up to stg£100m in taxes it believed he owed.
A hearing took place in 2007 and the court was told leaf/andrews had no money left from his fraudulent activities, that his family trust was in debt, and his investments had lost money.
At some point in the recent past, leaf/andrews also returned to work at the home funding corporation, but he is not a shareholder or director.
Mr ashken, the new owner of the company, said andrews is a consultant for home funding corporation, but he has no other connection to it. Mr ashken’s co-director at the company, sophie leighton, has other business links to the convicted fraudster.
Ms leighton, 23, is a director of good morning hotels ltd and eunoia ltd. Both of these are owned by leaf/andrews. He was a director of them. Company records show that eunoia is a consultancy company owned by leaf/andrews, but he joined it under the name ian leaf.
Ms leighton became a director of eunoia in november 2009.
She did not become a director of the home funding corporation until may last year.
Separately, eunoia had its address at the same office suite, on waterloo road, london, as home funding corporation’s uk parent company, city corporation. It relocated last month.
Earlier this week, the irish examiner contacted leaf/andrews through the phone number provided to customers of the home funding corporation.
Although it was a dublin number, it was automatically redirected to an office in england.
Leaf/andrews was also contactable through the phone number for the firm’s parent company, city corporation ltd.
Leaf/andrews did not make a statement. He said a person called ian leaf “did not exist” and all questions related to the company should be sent to its director, mr ashken.
Mr ashken said he and ms leighton are the only directors of the company and leaf/andrews was only hired as a consultant.
He said, as directors, they operate without any external interference.
“hfc is properly established and operates entirely within the law,” he said.
Mr ashken said it takes its reputation seriously and would vigorously prosecute anybody who sought to undermine that with “inaccurate, incomplete or otherwise defamatory details”.
The subprime sector
Home funding corporation, and a company it bought loans from, wise finance, operate in a legal, but unregulated, space in the irish financial sector.
Because they are not licensed, their conduct is not subject to policing by the central bank.
Subprime customers who have complained about their plight to the central bank have been told there is nothing that can be done, because if a company is not licensed it is not bound by the industry rules.
In one letter from the office of the financial regulator, a customer was told there was little that could be done.
“firms that hold no authorisation or licence from the central bank are not subject to the provisions contained in the consumer protection code, which the majority of entities/firms that are authorised/licenced by the central bank adhere to,” it said.
The lack of regulation in the subprime sector has been raised in the dáil on a number of occasions by sinn féin td martin ferris.
He has pointed to the high interest rates being charged of customers of wise mortgages and the wise finance company, as well as other, similar businesses.
And he said the government needed to act to close the loophole in which subprime lenders operate.
“some of the borrowers who have contacted me are under extreme stress and, indeed, duress. In some cases, the lender’s immediate family do not even know of the difficulties involved, and that isolation, along with the burden of often huge repayments, along with the threat of losing their home, can place an intolerable pressure on some people,” he said.
Mr ashken, the director of the home funding corporation, said it operates within the law and although it has opted not to be licensed, it sticks to the rules.
“although unobliged to do so because it is not a regulated entity, the company adheres fully to the marp,” he said.
British Fraudster Ian Leaf / Ian Andrews lost another reposession case for Elstree
HOME FUNDING CORPORATION LIMITED PLAINTIFF
AND
NIGEL BANNON AND MARK BANNON DEFENDANTS
JUDGMENT of Ms. Justice Eileen Creedon delivered on the 26th day of July 2019;
Introduction
1.
The plaintiff in these proceedings is Home Funding Corporation Limited who the Court was informed is now known as Elstree Mortgages Limited and is seeking the sum of €965,641.21 by way of capital and interest on foot of a loan of IR£15,000 advanced to the first named plaintiff Nigel Bannon in and around the 26th May, 1999.
2.
This claim is denied by both defendants who represented themselves in these proceedings.
Pleadings
3.
This matter was commenced by way of plenary summons dated the 16th December 2013
when the plaintiff made a claim for the following: -
(i) An order for specific performance of the agreement between the first named defendant Nigel Bannon and Secured Property Loans Ltd. (the original mortgagee) dated the 19th May 1999 (the commitment letter) wherein the first named defendant agreed to and indeed did, on the 26th May 1999, grant a first legal charge (the indenture of mortgage) over the lands described in the schedule hereto (the secured property) to the original mortgagee as security for a loan of IR£15,000 (the loan) which on foot of and in reliance of the commitment letter and the indenture of mortgage was advanced by the original mortgagee to the first named defendant on the 26th May 1999 and which indenture of mortgage was transferred to the plaintiff by deed of transfer dated the 15th June 2000.
(ii) A declaration that by virtue of the commitment letter the indenture of mortgage and the loan, the plaintiff holds an equitable charge (the equitable charge) over the secured property.
(iii) A declaration that the amount due and owing by the first named defendant to the plaintiff being the sum of €350,735 as of the 26th September 2013 (together with continuing interest) stands well charged against the secured property.
(iv) An order declaring that the equitable charge ranks in priority to any estate, interest or title (if any, which is denied) held by the second named defendant in the secured property.
(v) A declaration that the purported transfer of the secured property by the first named defendant to the second named defendant (the purported transfer) is void for breach of Clause 14(K) of the indenture of mortgage.
(vi) A declaration that the purported transfer is a fraudulent conveyance and void.
(vii) An order setting aside the purported transfer.
(viii) An order for possession of the secured property.
(ix) Damages in addition to and/or in lieu of specific performance.
(x) Damages for breach of contract, negligence, breach of trust, causing loss by
unlawful means, interference with the contractual relations and conspiracy.
(xi) Further or other order.
(xii) The costs of and ancillary to these proceedings.
4.
By virtue of a statement of claim delivered on the 29th July 2014 the plaintiff claimed as follows:
-
(i) An order of specific performance against the first named defendant in respect of his obligations contained in the commitment letter dated the 18th May 1999 and the mortgage dated the 26th May 1999.
(ii) A declaration that the purported transfer by the first named defendant of his interest in the property comprised in Folio 4759F, Co. Cavan (the secure property) to the second named defendant is void and/or voidable and hereby avoided:
(1) For breach of the prohibition or transfer or assignment contained in Clause 14(K) of the mortgage, and/or
(2) On grounds that it is a fraudulent conveyance.
(iii) Further and/or in the alternative, a declaration that: -
(1) The monies advanced to the first named defendant pursuant to the terms contained in the commitment letter and mortgage created a valid legal charge and/or equitable charge on the secured property in favour of the plaintiff in respect of the loan obligations of the first named defendant, and,
(2) The said legal and/or equitable charge over the secured property has priority over any interests in the secured property held by the second named defendant.
(iv) An order directing the defendants to deliver up to the plaintiff the unencumbered title deeds to the secured property.
application documentation in order that their client could consider his position. The letter also sought confirmation as to whether or not a charge had at any stage been registered.
25. Letter dated 12th February 2014, from Steen O’Reilly Solicitors on behalf of their client Mark Bannon, to Crowley Miller Solicitors on behalf of their client Home Funding Corporation Limited, where they confirmed that their client Mark Bannon had no knowledge of any alleged funding arrangement between his father and Home Funding Corporation Limited. They enclosed documentation in respect of the transfer of land on 25th January, 2006 and confirmed that their client Mark Bannon would be fully contesting any claim in relation to this matter and that any recourse that Home Funding Corporation had would be against Mr. Nigel Bannon.
26. Mr. Lonergan was also referred to a copy of a Land Registry Transfer of Charge in respect of folio 4759F County Cavan dated 1st March, 2001 which purported to transfer from Secured Property Loans Limited, being the person entitled to be registered as owner, in consideration of IR£15,000 the benefit of the charge to Home Funding Corporation Limited. The date of the Deed of Charge is blank on the face of this document.
27.This transfer, purports to be sealed by Secured Property Loans Limited in the presence of Fiona Weisz (Director) and a second illegible signature stated to be a director/secretary. Additionally, it also purports to be sealed by Home Funding Corporation Limited in the presence of two illegible directors’ names. No evidence of registration of that transfer of charge
was provided. Neither was there any evidence of this transfer of charge being notified to Mr. Nigel Bannon
28. It was highlighted to the Court by counsel for the Plaintiff that Stephen T Strong Solicitor appeared to act on behalf of both of the defendants in respect of the loan and the transfer of land from Nigel Bannon to Mark Bannon. A copy of the statutory declaration of solvency was furnished to the Court.
29. Under cross-examination, Mr. Lonergan was asked about Secured Property Loans Limited and about Wise Finance Company (Ireland) Limited. Mr. Lonergan indicated that there had been three or four changes of name for the company but stated that he had no knowledge of Wise Finance Company (Ireland) Limited. He confirmed that Elstree Mortgages Limited is the mortgagee, and that the original mortgagee was Secured Property Loans Limited. Mr Bannon put to Mr Lonergan that Wise Finance Company (Ireland) Limited was originally listed as the mortgagee on the face of the mortgage document however Mr Lonergan said he had no knowledge of this company and could not explain why this company was listed as the originator of the loan.
30. A company printout was produced showing that Elstree Mortgages Limited was previously known as Home Funding Corporation Limited and prior to that as Vivier Mortgages Limited.
31. Similarly, Mr Lonergan was also not in a position to make any further comment regarding the opened solicitor’s correspondence. He told the Court that he had no knowledge of the mechanics of the transfer of the loan from the various finance companies that had dealt with the loan since Mr Nigel Bannon took it out in 1999.
32. The second witness for the plaintiff, Mr. Ian Andrews (formally Mr Ian Leaf), was asked by counsel for the plaintiff as to his function in the plaintiff company. He said that he represented the owners of the company called Home Funding Corporation Limited and that he received monthly and quarterly reports from the people who were running the company day to day. He said he is not a director, but represents the shareholders and has responsibility for the operations of the company such as its financial running and that he also assisted with the setting up of computer systems. He said further in evidence that he gives strategic advice to the company on the appointment of lawyers. On further questioning from the Court he confirmed again that he was neither a director or employee but was more like a consultant working for a shareholder. He indicated that his family
trust owns the company. No documentation was produced to underpin this evidence. He informed the Court that his professional qualifications are as a graduate of economics and business and he is a qualified accountant.
33. He said that he had reviewed the Statement of Claim “in minute detail” and had requested employees if he could see a reconciliation between the company’s books, bank statements and the usual management accounts and that he would typically have done this prior to submitting the accounts to the auditor each year. None of this documentation was produced other than the printout. He was referred to the Statement of Claim at page 14, being the print out earlier shown to Mr Lonergan referred to above, and he was asked to comment on the content and format of the statement of claim based on his input. He indicated to the Court that at the time that the loan was made to Nigel Bannon, a different accounting system was in place in the company. He said he designed the statement and is “intimately familiar” with the entries on the statement. He stated that the Statement of Claim was 100% accurate. He said that he was responsible for conversion from an older software system to a more modern system. He gave no evidence in respect of the detail of the documents he said that had been reviewed by employees or the manner in which any reconciliation had been carried out. He gave no other evidence of advancement of the loan to Nigel Bannon.
34. He referred the Court to page 14 of the Statement of Claim which contained the attached printout and says that the starting balance was of IR£15,000, with an interest rate of 2% a month and that the last payment was made on 26th April, 2002. In confirming the date of the last payment he said was made by Nigel Bannon he said that “... it would be inconceivable that the company would record a payment that they had not received” as it would have been vouched against a bank statement. He gave no evidence as to the financial system in place at that time or the basis on which he made this assertion.
35. He confirmed to the Court that that Wise Finance Company (Ireland) Limited was an independent company and must have been listed in error on the face of the mortgage as the originator of the loan. He explained that Secure Property Loans Limited and Wise Finance Company (Ireland) Limited were under the same ownership. He said that Wise Finance Company (Ireland) Limited was one of the companies that introduced the loan to Home Funding Corporation Limited. No documentary evidence was produced in this regard.
36. In cross-examination he was asked by Mr. Mark Bannon if he was originally known as Mr. Ian Leaf. He confirmed that he was and that that he had changed his name. He was asked why he had changed his name and the witness questioned the relevance of that question. This question was not answered as counsel for the plaintiff argued that neither Mr Ian Andrews change of name or his credibility had not been raised in pleadings and was not relevant to issue at hand. That evidence completed the plaintiff’s case
.
Defence Evidence
37. Mark Bannon went into evidence. He indicated that he has to pass through the property contained in folio 4759F County Cavan to get to folio 4758F where he was currently in the process of building his house. He said that his percolation area is also on folio 4759F which services folio 4758F where the house is. Mr. Mark Bannon said that he has been on a mobile home on the property in folio 4759F since 1997 and that this would constitute it as being a family home as he lived there with his son. He said he knew nothing about the loans on the property taken out by his father and was never notified of any issue arising
by Mr. Stephen Strong. He presented the Court with the receipts for stamp duty paid on the property in relation to the transfer of the property from his father to him. He said that without this second folio he cannot get to his new home. He further highlighted to the Court that his water and electricity both come across folio 4759F to get to the new house he was in the process of building at the time the matter came before this Court.
38. Counsel for the plaintiff put it to Mark Bannon that his father signed a statutory declaration indicating that the property was not a family home but Mark Bannon replied that his father was in Dublin and may not have been aware that Mark Bannon was on the site since 1997. He also claimed that he never received this document at the time of the transfer. He was also referred to the letter dated 4th November 2013 from W. O. Armstrong & Company Solicitor, acknowledging the loan, however he indicated that he had no knowledge of the loan and that his involvement was only from 2006 onwards. Furthermore, Mark Bannon stated that he had nothing to do with the original mortgage. Mark Bannon further went on to tell the Court that he was never told about the mortgage and that he was not calling Mr Strong as a witness as he was now retired and therefore he had no way of contacting him and that he had no evidence to give to the Court about the original mortgage. He confirmed that his involvement in the issue was only from 2006 onwards.
39. Mr. Nigel Bannon in his evidence stated that he was denying everything. He said that his defence was lodged in December, 2017 and he proceeded to give sworn testimony. He said that he received no loan and that whilst he conceded that he did sign a loan application form with a Mr. Ron Weisz, he was not sure where all the rest of the signatures came from that were on various other documents produced to the Court. He said that he went to Mr. Ron Weisz as he wanted a loan of IR€15,000. He said that at the time, Ron Weisz told him to sign an application and he would see what he could do but that he did not normally lend money of that value, as it was only larger amounts of money, specifically sums over IR£50,000 that Mr. Weisz would have dealt with at that time. Nigel Bannon informed the Court that he then heard from O’Malley, Cunneen & McCarthy solicitors in December 2013 that he was being brought to court. He told the Court that he only signed the loan application and also asserted to the Court that the claim is statute barred as the plaintiffs were claiming the loan was issued in 1999.
40. He was referred to his signature on the Customer Care Booklet and he said that whilst it may look like his signature, he did not sign it. He said that he never heard of Mr. Brendan Liddy, the witness to the signature. When referred to the signature on the Commitment Letter he said he did not sign this. He said that it looked like his signature but it was not his signature and he also said that Mr. David Soden was only acting as his solicitor for a day and that he was only hired to explain to Mr Bannon what the documents meant.
41. An original copy of the mortgage document was produced to the Court. Mr Nigel Bannon was referred to the signing page of the mortgage document and it was put to him that this document identified him as the mortgagor. He said that it must have been a photocopy or a forgery of his signature. He did however concede that apart from the type of pen that it was signed with it did look like his signature. He confirmed to the Court once more that he never got the loan. Counsel for the plaintiff put it to Mr. Bannon that his solicitor would not witness a forged signature as this would have serious consequences for Mr Soden, including being struck of the Roll of Solicitors. Mr. Nigel Bannon claimed that he used the same pen all the time, never wrote in biro and consequently this was not his signature.
42. He was then questioned about the letter that, he Nigel Bannon, wrote to his solicitor David Soden in respect of the loan on the 26th of May 1995 when he confirmed that there were no Local Authority outgoings charged on the property. He was asked why he would have done this if there was no loan. With regard to the family home statutory declaration he stated that he was never in Mountjoy Square in his life – this was the address recorded for him on the family home statutory declaration bearing his signature.
43. The plaintiff opened the letter of 17th June, 2005 from Killeen & Company solicitors on behalf of David Soden to W.O. Armstrong and argued that it was sufficient to prove the loan, specifically he pointed to the second sentence in the second paragraph which stated, “...we would point out that in fact your client entered into an agreement with Secured Property Loans Limited on 19th May, 1999 for a mortgage wherein your clients specifically on page 3 of the loan agreement stated that the security for this loan was unencumbered and free of liens.” Mr. Bannon was further pointed to the clause in the mortgage
prohibiting the transfer or assignment of the property and Mr. Bannon replied indicating that this was an inter-generational transfer. Mr. Bannon confirmed that he never received any letter demanding payment of money.
Plaintiff’s Closing Arguments
44. Counsel for the Plaintiff said that while High Court proceedings were initiated in 2009 against Mr David Soden they were never served and a notice of discontinuance was filed. Counsel said that again in 2014, High Court proceedings were issued against the Bannons in error and that these proceedings were also discontinued. When asked by the Court as to why the 2009 High Court proceedings were discontinued, counsel for the plaintiff said that they were issued in error. He said further that it may have been due a change in solicitor and that the solicitor’s file was lost. Counsel stated that none of the principles
raised by the defendants meet the test of res judicata. He opened the case of Ulster Bank Ireland Ltd. V. O’Brien [2015] IESC 96 and quoted the following paragraphs: -“Where the circumstances indicated that a reasonable person would have felt
compelled to respond to an allegation in the context of an appropriate commercial relationship where money was due but did not so respond, an admission against interest might be inferred. That whether a failure to answer an allegation would make a declaration against interest of what would otherwise be hearsay was entirely dependent on the factual circumstances, including, inter alia, the relationship between the parties and the circumstances under which an allegation was made. The test must be that failure to respond, in circumstances where denial would clearly be required, would amount to an admission in terms of the conduct of reasonable people.” Counsel highlighted the judgment at para 3 which went on to deal with the swearing of
affidavits and further emphasised the previous point when it was stated that;“...the swearing of an affidavit, and its service in court proceedings, that made allegations that a sum was due could be accepted in the absence of denial, where the form and the content of what was deposed to and the exhibits supporting it carried sufficient indications of reliability.” Furthermore, counsel for the plaintiff said that December 2017 appeared to be the first time allegations of no money and no loan were made by the defendants and that they had solicitors acting for them at different points and times in the past. He said that on the
17th June 2005 Killeen Solicitors wrote to W.O. Armstrong and said that they wanted the Land Certificate lodged. In this letter it is stated that the Bannons borrowed money in 1999 from Secured Loans Property Limited and signed a mortgage. The letter stated that the Bannons got the money they wanted and that the plaintiffs then wanted to register the mortgage. Counsel asserted that the failure to respond to that letter and deny matters is an admission against interest, that in legal terms it is an admission and counsel asserted that there is no satisfactory explanation as to why W.O. Armstrong did not reply to these most basic of things. He said that Mr. Nigel Bannon has accepted that his signature is correct on the original loan application and he also said that this, coupled with the failure to respond to letters, proves to “a high level” that events occurred in the manner outlined by the plaintiff and argued that there is no really coherent basis for finding that a valid mortgage does not exist, apart from forgery and that there was no evidence of forgery.
45. The Court was pointed to s.74 of the Land and Conveyancing Law Reform Act 2009 in respect of fraudulent depositions. Counsel for the plaintiff said that this particular section of the legislation does not amend but reflects the prior law. Counsel f
or the plaintiff went on to say that the mortgage deed was validly executed and asserted that the 2006 transfer to Mark Bannon is void and voidable but also stated that the Court does not need to rule upon this if the Court accepted that clause 14K of the mortgage renders the transfer void.
46. He argued that the issue about Wise Finance Company (Ireland) Limited appearing on the face of the mortgage deed is not a good point as this company only appeared in one of the relevant documents being the mortgage document and therefore the Court cannot infer a different company had the benefit of the mortgage.
47. The judgment of Judge Clarke in the case of Moorview Developments Limited, Salthill Properties Limited, Valebrook Developments Limited, Springside Properties Limited, Drake S.C. Limited, Malldro S.C. Limited, the Poppintree Mall Limited and Blondon Properties Limited v First Active Plc, Ray Jackson and by Order Bernard Duffy v Brian Cunningham
[2011] IEHC 117 was opened to the Court. The case dealt with the issue of mistakes and counsel said that just because in 2009 there was one stray reference to another company should not be grounds to collapse the case and that all other documents such as inter alia, the Loan Application Form and the Customer Care Booklet correctly identified Secure Property Homes Limited and makes no reference to Wise Finance (Ireland) Company.
48. When questioned by the Court about the discontinuance of proceedings against the solicitor, counsel stated that advice was received as to the sustainability and viability of that claim as is necessary in all professional negligence claims and that the advice was that the actual undertaking given by the solicitor was a narrow undertaking to assist with Land Registry queries so therefore the decision was made not to sue him as he had made reasonable efforts to assist.
49. When asked as to what happened between 2005 and 2013, it was confirmed that no action at all was taken between 2005 and 2009 when High Court proceedings against Mr David Soden were commenced but discontinued. Counsel for the plaintiff said that the reason they were discontinued was because the plaintiff company obtained legal advice that they would not be successful in an action against Mr David Soden as he had not given an undertaken to them to register the charge but rather to assist them and he had made reasonable efforts to do this. When asked by the Court why when as asserted by the plaintiff payments ceased in 2002, was the first demand letter not sent until 17th Oct 2013. Counsel said that he could not provide a complete answer and could only assume that the file of correspondence from the solicitors was incomplete. However, he argued that the absence of correspondence does not give rise to the absence of a defence and that the required time limit is twelve years. He said that the twelve years runs from the last payment made which he asserts was on 26th April, 2002 and the issuing of proceedings on 16th December, 2013 stopped the statute running and these are the proceedings that are being prosecuted at trial so therefore these are the proceedings that the plaintiff is relying upon.
Discussion
50. The Court has a number of concerns in respect of the evidence put before it in this case.
These proceedings were fully contested.
(i) There has been considerable delay in the bringing of these proceedings which has not been accounted for. The mortgage is dated the 26th of May 1999 and the last payment is alleged to have been made on the 26th of April 2002. Correspondence
suggests that litigation was contemplated against Mr David Soden in 2004 but was not initiated until 2009 and then discontinued. A copy of these proceedings was not opened to the Court.
(ii) Correspondence with Nigel Bannon’s solicitors continued up to 2004 and then appears to have ceased until the 17th of October 2013 which appears to be the first letter of demand sent to the defendant Nigel Bannon. If there was any intervening
correspondence the plaintiff could not account for it or give any fuller account to the Court. No coherent explanation was provided to the Court as to why the first letter of demand was not sent until the 17th of October 2013 in circumstances where the plaintiff asserts that the last payment from Nigel Bannon was received in 2002.
(iii) The mortgage document put before the court recites Secured Property Homes Limited as the mortgagee. The mortgage document further down on page one in the interpretative provisions on its face recites Wise Finance Company (Ireland)
Limited as the mortgagee. Whilst counsel for the plaintiff argued that this was a mere error, witness for the plaintiff Mr Ian Andrews formally Mr Ian Leaf indicated that Secure Property Loans Limited and Wise Finance Company (Ireland) Limited
were under the same ownership. He said that Wise Finance Company (Ireland) Limited was one of the companies that introduced the loan to Home Funding Corporation Limited, but no further evidence was provided to underpin this
evidence or to precisely explain the interest of Wise Finance Company (Ireland) Limited, if any, in the mortgage transaction.
(iv) A copy Land Registry Transfer of Charge document in respect of folio 4759F County Cavan dated 1st March, 2001 was produced which purports to transfer from Secured Property Loans Limited, as the person entitled to be registered as owner,
in consideration of £15,000 the benefit of the charge to Home Funding Corporation Limited the plaintiff.
(v) This transfer is incomplete on its face as it leaves blank the date of the charge it purports to transfer. No account is taken of any beneficial interest Wise Property Company (Ireland) Limited may have in the loan. It is not clear to the court whether Wise Finance Company (Ireland) Limited had or has any beneficial interest in the loan or whether they should have been a party to the Transfer of Charge.
(vi) No evidence of registration of that transfer of charge was provided or of any attempts to register it. Neither was there any evidence of this transfer of charge being notified to Mr. Nigel Bannon as required.
(vii) The mortgage was never registered as a burden against the property contained in Folio 4759F County Cavan. The Plaintiff argues that the first named defendant refused to consent to the use of the land certificate for that purpose in a letter from his solicitors dated the 23 April 2004 after the Solicitor David Soden had failed to discharge his undertaking in that regard.
(viii) The Court understands that proceedings were contemplated against Mr David Soden but not pursued. No copy of the undertaking said to have been given by Mr. Soden or any other related correspondence was opened. There is no further
evidence of any further action being taken to pursue this aspect after the correspondence from Maurice G Lyons and company Solicitors of the 24th of November 2004 with Mr. Jarred Leaf of Home Funding Corporation Limited and the discontinued High Court proceedings in 2009.
(ix) Mr Mark Lonergan is a director of Elstree Mortgages Limited a company which was previously known as Home Funding
Corporation Limited since 2017. While he identified the mortgage documentation as shown to him, he had very limited
knowledge of the background to the case, he gave no evidence in respect of the advancement of monies to the borrower on foot of the mortgage and was not in a position to verify the contents of the statement of account which was produced in
the format of printout attached to the Statement of Claim.
(x) Mr Ian Andrews, previously known as Mr Ian Leaf, gave evidence in respect of the monies outstanding. The Court did not consider Mr Andrews to be a reliable witness. Despite direct questioning from the Court, the Court remains unclear as to
precisely what his connection is with the plaintiff or these proceedings and the extent of his knowledge of the contents of the printout showing the amounts outstanding. While he indicated that he had reviewed the document and later said
that he had “designed” the document and was 100% certain as to its accuracy the Court remains unsatisfied as to the
provenance of this account in the format of a printout document or the veracity of its contents.
(xi) When questioned as to the last date payment is asserted to have been made by Mr Nigel Bannon, Mr Ian Andrews was not able to go any further than to state that it would be inconceivable that the company would record a payment that it had not
received as it would have been vouched against a bank statement. There was no evidence that he had any direct knowledge of any of the payments made to include the initial advancement or the asserted final payment by Mr Nigel Bannon on the 22
April 2002 and no documentation was produced to underpin the contents of the print out document.
51. Mr Nigel Bannon confirmed that he had signed the Application form and made limited admissions to signing the Mortgage deed. In a fully contested claim the plaintiff opened the case of Ulster Bank Ireland Ltd. V. O’Brien [2015] IESC 96 and argued that the defendant’s failure to respond to the letter from Killeen Solicitors of the 17th of June 2005 to W.O. Armstrong Solicitors was an admission against interest and that this coupled with Mr Nigel Bannon’s signature on the mortgage was sufficient proof that “events had occurred in the manner put forward by the plaintiff”. The facts of that case were not opened to the court but the court looks to the quotation opened from the judgement of Clarke J as follows: “Where the circumstances indicated that a reasonable person would have felt compelled to respond to an allegation in the context of an appropriate commercial
relationship where money was due but did not so respond, an admission against interest might be inferred. That whether a failure to answer an allegation would make a declaration against interest of what would otherwise be hearsay was entirely dependent on the factual circumstances, including, inter alia, the relationship between the parties and the circumstances under which an allegation was made. The test must be that failure to respond, in circumstances where denial would clearly be required, would amount to an admission in terms of the conduct of reasonable people.” The letter relied on dated the 17th of June 2005 is a letter written by Solicitors for David Soden Solicitor to Solicitors for Nigel Bannon in which they reference inter alia the Loan Agreement dated the 19th of May 1999 for a mortgage which they state was signed by Nigel Bannon. Their letter sets out no further detail in respect of the terms of the mortgage. The plaintiff did not set out any further the basis on which it
says that the test set out in Ulster Bank Ireland Ltd. V. O’Brien [2015] IESC 96 has been met in this case.
Decision
52. The plaintiffs seek an order for specific performance against the first named defendant in respect of his obligations contained in the Commitment Letter dated the 18th of May 1999 and the mortgage dated the 26th day of May 1999 between Secured Home Funding Corporation Limited and Nigel Bannon and is seeking the sum of €965,641.21 by way of
capital and interest on foot of a loan of IR£15,000 advanced to the first named plaintiff Nigel Bannon in and around the 26th May, 1999. The plaintiffs further seek a number of ancillary reliefs. The mortgage is not registered.
53. The plaintiffs are not the original mortgagees but contend that they are the beneficial owners of the charge between Home Funding Corporation Limited and Nigel Bannon and in that regard produced the copy Transfer of Charge document above which is incomplete on its face and offered no evidence as to why this was not registered or of any attempts to register it.
54. There has been significant delay coupled with unaccounted for gaps in the chronology of events over a 20-year period.
55. The Court found Mark Lonergan to be a truthful witness but his evidence was severely curtailed by his very limited knowledge or familiarity with this transaction. His evidence went no further than to identify the original mortgage documentation between Secured Property Homes Limited and Nigel Bannon. He stated that he could not give evidence in respect of any of the intervening transactions which the plaintiff says proves that Home Funding Corporation and now Elstree Mortgages Limited are the beneficial owners of that charge. He gave no evidence in respect of the unregistered copy Transfer of Charge document. He could give no evidence in respect of any payments made or amounts outstanding.
56. The Court did not find Mr Ian Andrews to be a reliable witness. He conceded that he had been previously known as Ian Leaf. As stated above despite questioning from the Court, the Court remains unsatisfied as to the precise nature of his role within the plaintiff company and his connection with this litigation.
57. The plaintiff relied on Mr. Ian Andrews evidence to prove the statement of account. Crucially as stated above despite his assertions of having “reviewed” and “designed” the account document he went on to say that it was generated as a result of a reconciliation carried out by employees of the company. No evidence in respect of that reconciliation or the generation of that document was produced. The Court is not satisfied that he is in a position to give evidence to prove its contents. The requirement to prove the accuracy of the statement of account is critical in this case. It recites the date of advancement of the
loan to Mr Nigel Bannon, the amount that the plaintiff says is outstanding and the final payment made which goes to the running of the Statute of Limitations 1957.
58. The plaintiff agrees that the applicable limitation period in these proceedings is 12 years and that this time runs from the point of default which the plaintiff says from the printout document is the last payment made by Mr. Bannon on the 26th of April 2002. The plaintiff asserts accordingly that the issuing of proceedings on 16th December, 2013 stopped the statute running and that these proceedings were issued just inside the limitation period.
59. The Court is not satisfied on the balance of probabilities from the evidence given by Mr Ian Andrews that the last payment received by the company was on the 26th of April 2002 and accordingly is not satisfied on the balance of probabilities that these
proceedings were issued within the applicable limitation period.
60. The Court considers the limitation period to be dispositive of these proceedings.
61. Accordingly, the Court dismisses the plaintiffs claim
1. Luigi Wewege. Luigi left Elstree Mortgages in 2016 when it was called Vivier Mortgages. Luigi Wewege now works with Caye International Bank - Belize.
2. Ian Leaf. Now know as Ian Andrews. He is the one who invested his ill-gotten money in Elstree Mortgages. He is the one who is now the owner of Elstree Mortgages.
3. Richard Andrews. Richard works with Ian Leaf and uses his name as the director and shareholder to conceal the identity of Ian Leaf / Ian Andrews.
4. Richard Laurence Ashken. He was the one performing the role of Richard Andrews before he was exposed by RTE Ireland.
5. Laurence Russel Hamilton. Laurence was exposed by Phoenix magazine Ireland and he left after that. He is a good friend of Ian Leaf and Richard Andrews.
6. Kevin Steele. Kevin is now know as Kevin Macleod and many other names. He is an ex-solicitor caught for a bank fraud in the UK. He is the one who helps Ian Andrews in his legal matters.
7. Thomas Daly. Tom was a previous proxy shareholder and director
8. Joan Donnelly. She was also a proxy shareholder and director
List of Solicitors involved in this scam
1. Hanlon and Company, Dublin, Ireland (http://www.hanlonandco.com/)
2. Crowley Miller Solicitors, Dublin, Ireland (https://www.crowleymillar.com/
Friday, February 06, 2015--- https://www.irishexaminer.com/ireland/lender-set-up-to-launder-cash-311018.html
At least 30 homeowners are facing repossession despite learning their mortgages were funded through the proceeds of crime.
It has emerged a subprime lender that was set up here in 1997 was part of a complex international structure that was used to launder the proceeds of a £55m tax fraud.
Home Funding Corporation Ltd, which changed its name to Vivier Mortgages Ltd, was set up and funded by English accountant Ian Leaf to invest money he stole from the UK Inland Revenue.
Records from the Crown Court and High Court in England said Mr Leaf used 165 entities around the world, including the Home Funding Corporation, to hide his money and his criminality. Since 2013, 19 fresh repossession actions have been initiated against borrowers whose mortgages were funded by Mr Leaf.
High interest rates have seen borrowers who drew down less than €100,000 confronted with demands in excess of €1m.
The Home Funding Corporation was confiscated from Mr Leaf by the Crown Court in 2007. And, according to company records, it is now owned by a New Zealand businessman.
Under its new name it has been lobbying the Department of Finance not to extend regulation to previously unregulated entities. This was ahead of a draft bill Michael Noonan introduced to the Dáil on Wednesday.
Prior to the confiscation of Mr Leaf’s assets in 2007 more than €7m of his profits were used to fund approximately 150 mortgages in Ireland.
In 2007 the company was part of a list of assets taken over by a court appointed receiver. However, in 2011 the receiver sold the Irish firm to an English buyer who got control of the Irish loanbook.
In 2013 it was first revealed in the Irish Examiner that Mr Leaf, who had changed his name to Ian Andrews, was back working at that English company. In 2014 shares were transferred to a New Zealand businessman.
In correspondence to RTÉ Mr Leaf accepted he established the Home Funding Corporation but denied that it was funded through the proceeds of crime.
New Zealand Ministry i snow looking into links between Fraudster Ian Leaf and Vivier and Company
The Ministry of Business, Innovation & Employment's Integrity and Enforcement Team is investigating potential links between three New Zealand registered companies and convicted British fraudster Ian Andrews, formerly Ian Leaf.
The three companies,with the same directors and shareholder, are Vivier and Company Ltd, Vivier Capital Ltd and Vivier Investments Ltd.
A financial services firm, Vivier and Company says it offers current accounts, online savings accounts, debit cards, international money transfers and escrow accounts. Its website touts deposit rates in a range of currencies including the New Zealand dollar that in some cases are north of 6%.
Andrews was jailed in 2008 for defrauding Britain's Inland Revenue out of more than £50 million. After he served his time a 2015 Irish TV report by the RTÉ Investigations Unit linked Vivier to tax fraud, money laundering, and Andrews. Asked about the report by interest.co.nz in 2015, Vivier and Company's then-CEO, Luigi Wewege, claimed the programme contained "untrue and defamatory allegations."
In the case of HFC (now Elstree Mortgages) v NIGEL BANNON AND MARK BANNON, the Irish courts once again declared that Elstree Mortgages brought a fraud case and the judge also made a special comment about Ian Leaf / Ian Andrews that he is not a reliable witness. The judge knew very well this person is a big crook and HFC was a fraud operation to launder his crime money.
This fraudster will be defeated in all the Irish cases now. The crook is unmasked.
Fraudster back in business after stealing £54m and not paying back a penny
One of Britain’s biggest fraudsters is back in business – even though he stole £54million from the taxman and never paid back a penny.
Conman Ian Leaf, nicknamed ‘The Tea Leaf” has changed his name and now allegedly runs an offshore company with another ex-convict.
Leaf was sentenced to 12-and-a-half years jail in 2006. On top of the £54m he stole through tax refunds, Inland Revenue investigators found he had amassed an extra £43m in profit.
The ex-car salesman lived the high life in a chateau on Lake Geneva, but when he was told to pay back some of the cash he claimed it had vanished.
But Leaf, 65 – now called Ian Andrews – was this week unmasked in court as the man behind Consult Partners.
The court heard that Kevin MacLeod, 59, helps to run the company as a consultant.
MacLeod was called Kevin Steele in 2008 when he was kicked out of Mishcon de Reya – the legal firm used by Princess Diana in
her divorce.
He was later jailed for five years for helping steal £18.4million.
The former director at Queens Park Rangers football club helped forge documents as part of a dodgy bid to buy luxury property on a resort where footballer Wayne Rooney owned a villa.
Despite their fraud convictions, neither Andrews or MacLeod were ever barred from running businesses.
And now they stand accused of sharp practice again by their former business partner Arpit Ahuja.
Consult Partners are suing Mr Ahuja for £75,000 for allegedly stealing business ideas and taking clients. But Mr Ahuja denies the allegations – and is now counter-suing for £18,250. He says they parted ways after he found out about Andrews’ past.
The Central London County Court heard this week that Mr Ahuja also claims Andrews siphoned off £55,000 that was owed to creditors and ploughed it into other companies.
Mr Ahuja also claims he was kept in the dark about MacLeod’s fraud conviction and previous name.
Andrews, who caught the bus home after this week’s disclosure hearing, is also accused of moving business to a Seychelles tax haven to conceal his involvement. The court heard Andrews denied claims Mr Ahuja was threatened, abused and blackmailed.
As the Tea Leaf in 2006, Andrews was given a confiscation order to pay back £16.25million.
But he told Southwark Crown Court he was in debt, blaming 9/11 and the burst of the dotcom bubble.
Last night he told the Sunday Mirror he had disclosed his involvement in all firms in accordance with the law and said MacLeod was not operating any businesses.
He said: “To allege or imply I have registered new businesses in the Seychelles in order to mask my involvement in these or other businesses is untrue.”
He claimed the only wrongdoing in the case was committed by Mr Ahuja and his wife and said Mr Ahuja’s “bare assertions have been made without any supporting evidence”.
He said all of his assets were passed to an official receiver after his conviction and no business was being run as a result of failure to seize his assets.
JUDGMENT of Ms. Justice Baker delivered on the 12th day of October, 2017.
1. This judgment is given in the appeal of the plaintiff against the decision of the Circuit Court of 21st March, 2017 where His Honour Judge O’Donnabháin refused to grant an order for possession of certain lands held by the defendant subject to a charge made on 28th August, 1997 with the Wise Mortgage Company Limited. The plaintiff is the successor in title of the mortgagee and the charge is registered as a charge on Folio 67556F Co. Cork.
2. The parties have agreed that, as the application is one for summary judgment for possession, the test identified in the Supreme Court decision of Aer Rianta c.p.t. v Ryanair Ltd [2001] IESC 94, [2001] 4 IR 607 is applicable, and that the test to be applied is whether the defendant has disclosed an arguable defence.
3. The facts of the case are quite unusual. The civil bill for possession dated 21st October, 2013 was grounded on an affidavit of Richard Laurence Ashken a director of the plaintiff, the successor in title of the original mortgagee. The original loan of £21,000 was advanced on 1st September, 1997 by the Wise Mortgage Company Limited to the defendant. The loan is not denied. The loan agreement provided for the making of equal monthly payments, the last of which payments was made on 1st August, 2011. The mortgage was for the term of fifteen years and equal instalments of £431.67 were to be made, making a total amount repayable of €77,700.60 and showing an APR of 29.2%.
4. The plaintiff avers that as of 1st September, 2013 the redemption figure on the mortgage loan was the sum of €90,622.44, and that following demand of that sum, the plaintiff sought to exercise its statutory powers contained in s. 19 of the Conveyancing Act 1881. Thus far the matter is not contentious.
5. The defendant seeks to defend on a number of grounds, which I will deal with in sequence.
Interest rate
6. The defendant argues that the interest rate of 29.2% APR is “oppressive and unconscionable” and that he has in those circumstances an arguable defence. Certainly, seen in the context of current very low interest rates in the Irish market the APR of 29.2% does seem high, and perhaps very high. The plaintiff has conceded the point relating to the interest rate and has agreed to limit its claim out of the proceeds of sale of the secured property to the sum of €40,952.64 plus interest at 18% per annum from 1st September, 2012. That concession will reduce the amount now said to be owed to €155,653.12 as of 1st April, 2016.
7. The borrower states that he did have legal advice at the time of entering into the agreement, and that the monies were borrowed to buy livestock, and not to purchase the property itself which he owned in his sole name, free from encumbrances.
8. An amount of affidavit evidence has been adduced relating to the correct calculation of the interest and the defendant argues that the calculations of the plaintiff are in consequence unclear and not in accordance with the payment provisions contained in the loan documentation or in the “commitment letter” of 16th April, 1997 which provides for 180 fixed regular instalments. Clause 8 of the “commitment letter” provides for a different and reduced monthly payment of £289.92 to be applied “provided that payments are made on or before the due date each month”, and the borrower argues that accounts exhibited by the plaintiff do not adequately show how the plaintiff and his predecessors in title properly applied the reduced payment amount to take account of payments made early or on time.
9. Clause 11 of the “commitment letter” provides that the loan would be in default 30 days after failure to pay a monthly instalment, and provides in bold terms that 18% is the interest rate applicable to “all monies collected due” should default arise. The clause expressly refers to the “Rule of 78” now explained as being a “statutory rebate mechanism in the UK Consumer Credit Act”. The relevant provisions have not been exhibited on affidavit, and I accept as a matter of principle that the “Rule of 78”, if it does provide a means by which interest could be calculated is capable of applying to a loan in the jurisdiction of Ireland, if the reference to “the Rule of 78” is clear, and if there is no impediment to the incorporation by reference by a drafting device of a mechanism adapted from another jurisdiction. However, Mr. Lehane, even at this juncture, says he cannot identify the “Rule of 78”, nor can his financial adviser, and John Vaughan, a chartered accountant engaged by the defendant, has stated in a letter of 11th March, 2015 which has been exhibited before me that he does not understand how the interest is calculated, and that he does not understand on “what basis these rates of interest were to be calculated or applied”.
10. A court hearing an application for summary judgment may in a suitable case, and does in almost all cases, determine the question of interest if such can be ascertained on a calculation, whether that be a simple calculation or one requiring some further engagement and explanation by the parties. I am satisfied however that on the evidence before me that in the present case the basis on which interest can be calculated is opaque and obscure and, while the plaintiff has made a significant concession, it is not possible on the affidavit evidence to ascertain with any degree of certainty the amount of interest, or indeed the extent to which the defendant was in arrears at the date of the demand letter.
11. On that ground alone, it seems to me that the matter is not one suitable for summary judgment.
12. The defendant accepts that he borrowed the principal sum, that he fell into arrears, and that the charge was validly created. He says however, that at the date of demand the amount due by him was a sum of approximately €8,000 and that if that calculation is correct, he would have been in a position to repay the full amount of capital and interest due at that date.
13. The difference between the parties with regard to the amount due is at such a level that it makes it impossible to reconcile on affidavit evidence. This is not a case where the defendant has made a calculation by way of a mere assertion, and the calculation proffered by him, supported by a letter from his chartered accountant, raises sufficient doubts with regard to the true figure owed in respect of the loan for me to conclude that the matter is not one in respect of which an order for summary possession should be granted.
14. In the absence of clarity with regard to the figures, and having regard to the ambiguity in the loan documentation, it is at least arguable that the claim of the plaintiff could fail, either on the grounds that the loan documentation is void for uncertainty, or that the interest rate was not agreed, or amounts to a penalty.
Invalid letter of demand
15. The defendant relies on an argument that the amount stated in the letter of demand is incorrect and the claim was flawed, as the letter of the demand is not sufficient to enable the plaintiff to argue that the loan amount has become due for the purposes of an application under s. 62(7) of the Registration of Title Act 1964.
16. This question has been conclusively determined by Cregan J. in Flynn v. Nation Asset Loan Management Ltd. & Ors. [2014] IEHC 408, where he held that a letter of demand even if it did overstate the amount due “was still a valid letter of demand” (para. 233). The letter of demand in the present case is not a statutory notice such as is found s. 8 of the Bankruptcy Act 1998, but is rather akin to what Cregan J. called a “contractual demand”. The notice therefore, in accordance with that authority does not require to be exact, provided it is clear what is to be done by the borrower. This point cannot succeed.
Unlawful or illegal transaction
17. This is the most unusual aspect of this case. In his supplemental affidavit sworn on 16th March, 2015, the defendant complains that monies advanced by Wise Mortgage Company Limited were “the fruits of crimes”, and “the laundered proceeds of crime”. His affidavit evidence is to the effect that one Ian Leaf, also known as “Ian Andrews” is a “convicted fraudster”, who engaged in a “complex web of transactions” inter alia, through the unregulated sub-prime lending market. Confiscation proceedings, similar to those that might be instituted by the Criminal Assets Bureau (“CAB”) in this jurisdiction, were taken against Mr. Leaf/Andrews in the jurisdiction of England and Wales. It is arguable that the original mortgagee, the Wise Mortgage Company Limited transferred its assets to Home Funding Corporation Limited of which the present plaintiff is a direct successor in title.
18. Apart from his averment on affidavit, the defendant exhibits a newspaper article from the Irish Examiner newspaper dated 16th February, 2013 and a copy of an RTE News report of 6th February 2015 which refer to the establishment by Mr. Leaf/Andrews of a company, Home Funding Corporation Limited, which was funded through an “investment vehicle” basis in the Bahamas. Richard Ashken was identified as a “controlling party” of that company and it is he who swore the grounding affidavit in the present proceedings. Mr. Leaf/Andrews was sentenced to twelve and a half years in jail, reduced to ten years on appeal, for money laundering and tax offences. The exhibited documents are in no sense evidence, but they do elevate the averments of Mr. Lehane in his supplemental affidavit to more than “mere assertions”, and do in my mind raise a sufficient basis on which a court might be concerned to investigate the providence of the funds.
19. The affidavit of Joan Donnelly on behalf of the plaintiff does not deny that Home Funding Corporation Limited was one of the assets confiscated from Mr. Leaf/Andrews, nor does she deny any of the so-called “money laundering” activities of Mr. Leaf/Andrews. She says however, that as a matter of English law the purchase by Home Funding Corporation Limited of the confiscated assets cured “any taint that could possibly have affected any aspect of the plaintiff’s business” and as such, the monies advanced to the plaintiff were not in any way tainted by illegality.
20. That is an argument which requires evidence of foreign laws and none was adduced before me. While the proposition that a sale by CAB of confiscated assets can pass an unencumbered title is one that could be readily be accepted, the agreement by analogy with foreign legislation is not one that I can accept without evidence.
21. Accordingly, I consider that the defendant has shown he has an arguable defence on the ground of illegality, and sufficient to defend an application for summary judgment.
22. In all of the circumstances, the appeal from the Circuit Court is dismissed. The matter cannot be determined on affidavit.
Elstree Mortgages Limited (Ireland) Reviews
HFC to Vivier to Elstree Mortgages Ltd
This article is taken from THE PHOENIX MAGAZINE, IRELAND - OCTOBER 9, 2015
In courts across the country, a lender called Vivier Mortgages Ltd (VML) has been keeping plenty of lawyers busy, as it steps up repossession cases against punters who took out loans years ago and who have been whacked with exorbitant interest rates. VML is the new name for lender, Home Funding Corporation Ltd (HFC), where the principal was convicted British fraudster, Ian Leaf. The VML boss is Italian-born South African, Luigi Wewege (30), who spent some time in New Zealand, where he made an impact through a racy political scandal in 2013.
VML says that the new directors and owner of the company are "entirely distinct" from its previous owner. How did an urbane South African end up as the managing director of a subprime lender in Ireland? The story of HFC involves a web of characters and companies in the UK, New Zealand and elsewhere, but it begins in Ireland in 1997 when HFC was set up.
Most of its clients were cash-strapped farmers with poor credit ratings. As an unregulated entity, not subject to the Central Bank's code of conduct, HFC could impose penal interest rates on borrowers if they had missed a payment. In a repossession case heard in Clare earlier this year, the County Registrar described as "immoral" the interest rates imposed on a farmer, whose 26-acre farm the company was seeking to repossess. Since 2013, the company has issued around a dozen High Court actions against borrowers, in addition to various taking various Circuit Court cases.
Ian Leaf was the initial owner of HFC. He lived in Switzerland but was convicted in the UK in 2005 of defrauding the Taxman out of £54m, for which he was sent to prison. He was released in 2008 (and later changed his name to Ian Andrews) and his assets, including HFC, were subject to a UK confiscation order to be implemented by a UK receiver. In 2011, the company was sold by the receiver to another entity, City Corporation Ltd. One of the principals in City Corporation was Laurence Hamilton, a business associate of Leaf's, while the other was UK businessman Richard Ashken, also a Leaf associate.
Wewege entered the picture in March 2014, when he joined the HFC board. Two Irish directors — Thomas Daly and Joan Donnelly, both from Dublin — joined the VHF board later that year. The Dublin law firm, Crowley Millar, had been on record for VML in the various repossession cases. (The firm's partner, John Carroll, told Goldhawk it ceased to act for the company after a programme from RTE's Investigations Unit was broadcast in February.) At some stage after September 2013, shares in HFC were transferred from City Corporation into Wewege's name and in August 2014, HFC changed its name to VML. Leafs involvement in HFC was the subject of the RTE programme.
Shortly after the programme was broadcast, Wewege and VML lodged proceedings in the High Court against RTE. The company says that the "proceedings are for defamation, procuring a breach of confidence, malicious falsehood and other wrongs. VML says "the true position... ignored by RTE" was that in 2004, the company effectively came "under the control of the British government." It said that in 2011, the British government (ie. the UK receiver) then sold the company to an "English private company." (This is a reference to City Corporation.) It also stated that in 2014, that English entity sold the company "to its present owner" which is "entirely distinct from the previous owners and directors."
Wewege told RTE. that Leaf acted as a "consultant" for City Corporation after it took over HFC in 2011. But court documents obtained by Goldhawk, as part of a case in 2013 in which HFC was suing its former solicitors, Lyons Kenny, suggest Leaf had a much more active role in the company. (The case against Lyons Kenny concerned a dispute over fees and was later struck out.) In an affidavit, solicitor Barry Lyons of Lyons Kenny referred to Ian Andrews (Leaf s new name) as "the principal behind" HFC. Lyons also exhibited emails sent around September/October 2012 showing that at that stage, Leaf/Andrews was involved in the management of the company, through discussions with solicitors at Lyons Kenny concerning legal fees, invoices, etc.
One of the unsatisfied charges against the company's assets (registered in May 2012) is in favour of Swiss resident Caroline Naylor, Leaf's second wife. (He has since remarried.) Another unsatisfied charge registered at the time is in favour of a UK company, Sons of Cursitor Ltd, which is owned by Laurence Hamilton, who also served on the HFC board from 2013 until last January. Wewege declined to tell Goldhawk how he first came into contact with City Corporation. However, Richard Ashken and Leaf/Andrews were active in Auckland, New Zealand, for a spell around 2011, the same year Wewege arrived in that city. Records with the New Zealand Companies Office show that in that year, Ashken set up a company called City Savings Institution Ltd in Auckland. (City Corporation owns this company's shares). The presenter of a company document to the Companies Office that year is listed as "Ian Andrews."
While Ashken and Leaf/Andrews were setting up shop in Auckland, Wewege was making a name for himself in political scenes as a mover and a shaker. The smooth talking South African was quite a networker and became campaign organiser for a politician named John Palino, of the right-leaning National Party, who was seeking election as Mayor of Auckland in 2013. In the course of the campaign, a story emerged about Palino's rival, incumbent Mayor Len Brown of Labour, having a two-year affair with a much younger woman, Bevan Chuang, an associate of Wewege's. Chuang claimed that Wewege had pressurised her into going public with the Brown affair, a claim he denies. Wewege left New Zealand after the Len Brown scandal in October 2013 and spent some time in the US, but re-emerged in New Zealand last year when he joined the board of a New Zealand company, Vivier & Co, which is related to VML. A New Zealand businessman, Michael Hart (72) —who worked with Wewege on John Palino's failed mayoral election bid — holds all the shares in Vivier & Co.
Wewege didn't respond to a query from Goldhawk about how he funded his purchase of HFC in 2014. ("The insinuations behind your questions are defamatory," he said. "If you repeat any of them, my company and I will not hesitate to sue.") Perhaps a fuller explanation might become apparent in the course of his defamation action against RTE?
This company was first set up as "home funding corporation" by a very popular british tax thief "ian andrew leaf" who is now known as "ian andrews". Later the name was changed to "vivier mortgages limited" and subsequently to "elstree mortgages limited". The central bank of ireland has still not allowed the registration of this company as a mortgage provider.
Watch the documentary by rte here - https://www.Rte.Ie/news/player/2015/0205/20723428-rte-investigations-unit-the-loot-the-loans/
This is what the irish journalist "conor ryan" wrote about ian leaf in 2015, when it cam to light that ian leaf was still controlling the company. In 2019 it was again exposed that ian leaf Now ian andrews) was managing elstree mortgages along with kevin macleod who was also a famous fraudster and changed his name from kevin james steele to kevin macleod.
Ian leaf has a new name and is out of prison, but a convicted fraudster who cheated british taxpayers out of £76m is back and doing business in ireland, says investigative correspondent conor ryan
Out of jail and with a new name, a playboy tax cheat, ian leaf, is back working with the subprime lender he established here at the height of his international fraud business.
Fifteen years ago, from a mansion in the swiss alps, leaf Pictured left) ran a sophisticated scam, juggling money across the world and using it to cheat british taxpayers out of stg£76m.
His funding involved fraudulent documents drawn from a bank he set up on a pacific island that is smaller than killarney’s lough leane and where less than 10,000 people live.
During the 1990s, leaf, 59, lived an extraordinarily lavish lifestyle. His complex business model took years for the tax authorities to unravel.
They delved into dozens of companies: he used 13 firms to falsely declare losses and reclaim corporation tax he was not due.
When he was convicted, in 2005, the cost of his crimes was stg£76m; £55m in lost taxes and £22m in reclaimed taxes.
Leaf has since served his time and changed his name to ian andrews.
Leaf/andrews’ empire began to dissolve five years before his conviction, when his private jet stopped for a shopping trip in rome and he was arrested on an international warrant.
This was not before he had spread his tentacles across the world. His enterprise involved setting up an irish company with an eye on the unlicensed, subprime lending market.
Home funding corporation was established in 1997 by leaf/andrews. It was funded through an investment vehicle based in the bahamas. The firm had different directors, but the company accounts noted that these people did not know the controlling party.
Home funding corporation has changed hands, but is still in operation. It has acquired high-interest, subprime loans, mostly linked to farm land, from other unlicensed lenders in ireland.
When it last filed accounts, the company had €17.7m worth of loans on its books, including the outstanding interest due. The value of the loans had grown from €14.4m in 2010.
But the firm has made provisions for €12m worth of possible bad debts within its loan book. It did €3.3m worth of business in ireland in 2011.
The company is involved in a number of cases in the irish courts, where it is seeking to take ownership of farms that were offered as security for the subprime loans.
But home funding corporation is also defending actions in which borrowers are disputing the claims the company has made to the title. Home funding corporation, which is under a new owner, said it has numerous clients and is not at liberty to discuss their accounts.
The irish examiner has spoken to a number of the borrowers involved.
At the start of last year, home funding corporation had two directors, who were paid €60,000.
Neither of these were leaf/andrews.
According to the accounts, the controlling party for home funding corporation was london-based accountant and director, richard ashken, 60. According to company records, he joined the board in 2011.
Mr ashken is also the chairman of home funding corporation’s parent group, city corporation. It runs financial institutions in britain, ireland, and new zealand.
The fact that leaf/andrews is back working with home funding corporation has not been known. When he was contacted this week, he said the person named ian leaf did not exist.
Leaf/andrews’ low-key presence is a marked difference from the lifestyle he enjoyed before his arrest.
Playboy fraudster
Leaf/andrews developed an outwardly successful business as a specialist car salesman, after he qualified as a chartered accountant. He sold his dealership in the early 1980s and used the profits to move to other ventures.
With his first wife, he had a son and a daughter.
In 1987, he and his second wife relocated to a mansion in geneva. From there, he built up an empire crowned with two private jets and a garage of luxury cars.
After one of his court appearances, the daily mirror newspaper reported that his jets were used to keep hair appointments in britain.
Another article noted that he secured a phone number beginning with james bond’s signature code, 007.
Leaf/andrews was first arrested on an interpol warrant, in 2000, when he landed his private jet in rome and produced an out-of-date passport. The warrant was triggered and he spent the next nine months in jail, awaiting a ruling. Before this was delivered, he was allowed a temporary release.
He took a train to northern italy, hired a guide, hiked across the alps, and returned to switzerland, where he moved to a secluded mansion at verbier, in the alps.
From the alpine tax-haven, he fought extradition back to britain. The authorities succeeded in repatriating him when fraud charges were also tabled. While a warrant was out for his arrest, leaf/andrews was living in his lavish mansion and was married to his third wife, dominique forsberg.
Ms forsberg was sweden’s miss universe entrant in 1994.
Leaf/andrews eventually returned to britain, in 2004, and was convicted the following year.
He was sentenced to 12.5 years in jail, but this was reduced to 10 years on appeal. He had served time awaiting his trial and he was also entitled to early release, under licence.
The crimes he was charged with covered a date range in the early 1990s. This was before the home funding corporation was set up in ireland.
The crimes involved the purchase of loss-making companies and the transference of their tax liabilities from other firms that he owned. Corporation tax could be claimed back from the then inland revenue.
The scam was facilitated through fictitious documents generated from a bank registered in the pacific island of nauru. The bank was controlled by leaf/andrews and it loaned huge sums of money to his other companies.
In 2005, the revenue compliance director, dave hartnett, said it was a very complex scheme that leaf/andrews hoped to operate, without detection, from switzerland.
“leaf Andrews) believed that by leaving the uk he could escape justice, but he was wrong. We will seek to bring to justice anyone who sets out to line their own pockets at the expense of honest taxpayers.
“this was a multimillion-pound crime and the sentence reflects the seriousness of his offences,” he said.
Setting up in ireland
The home funding corporation was established in ireland in 1997, when leaf/andrews secured the assistance of another subprime lender, ronald weisz.
Mr weisz was living between britain and ireland, at the time.
However, two years earlier he had pleaded guilty to a fraud charge in new york, for which he was fined and placed on probation. Mr weisz said he was never a shareholder or investor in the home funding corporation.
Mr weisz said when the englishman wanted to set up in ireland he helped him, and his son jarrod, to get established.
Mr weisz said he also sold mortgages, which had been taken out with his own wise mortgage company ltd, to home funding corporation.
Mr weisz said this practice, securitisation, was routine among financial institutions. He also sold loans to other companies.
Mr weisz’s fraud conviction was on a smaller scale.
An arrest warrant had existed for a long time and, in 1995, he struck a deal with the fbi to return to america, where he could be arrested at jfk airport.
He pleaded guilty to one of five charges that had been brought against him.
These related to the supply of fraudulent information to secure a loan from a bank in the late 1970s. A statement from the home funding corporation said that it was no longer connected to the wise group of companies.
“mr weisz acted for the company when it was established in the 1990s, but his involvement with it ceased well over a decade ago,” it said.
Mr weisz said he has had not dealings with the home funding corporation for a number of years and had only worked with leaf/andrews.
Mr weisz said he did not know any of its current directors or owners.
The irish business
At the end of 2011, there were more than €17m worth of loans booked with the home funding corporation. It has been established, through the customers themselves or from court filings, that a number of these were acquired from mr weisz.
Documents filed with the companies registration office list more than 40 individual mortgages held by home funding corporation. Most of these were taken out between 1997 and 2000.
These were all the subject of charges held by a swiss-based private lender and another private financier in britain.
The charges covered all the loans and all the interest due on the loans.
One of the loans involves a tipperary farmer who borrowed €80,000 from wise finance company in 1997; security was given on three associated properties. One of these properties was seized four years later; another loan was given to clear the balance. This loan was then sold to home finance corporation.
Before that, an agreement was struck for the borrower to sell his land to cancel out the debt, which by then had risen to €165,000.
However, the borrower subsequently took separate proceedings and claimed that the 2001 agreement was struck under duress and undue influence.
This case is still before the courts. The wise finance company and the home funding corporation are co-defendants.
Documents from another borrower, which are tied to land in north cork, were also seen by the irish examiner.
These show that a disputed loan, with a principal of less than ir£40,000, now stands at more than €500,000.
Interest statements show that the balance has grown by more than €100,000 in the last year.
Home funding corporation used to share the same solicitor as mr weisz, but this is no longer the case.
Home funding corporation is currently represented by lyons kenny solicitors in dublin. Its office, at no 57, fitzwilliam square, is also the registered address and contact point for debtors of home funding corporation.
A statement from lyons kenny partner barry lyons said it could not comment on leaf/andrews’ past. “as you are aware, we are a firm of solicitors. We provide commercial legal services for home funding corporation limited, and over 3,000 other clients. You will appreciate we are not at liberty to discuss the business of individual clients. Any queries in relation to the trade of home funding corporation should be addressed to the company directly,” it said.
Reacquainted with the company
On dec 16, 2008, leaf changed his name by deed poll. A acknowledgement of this appears in the london gazette.
It said ian andrew leaf, of no 6, allerton court, turnberry close, london, abandoned his old name and assumed the name of ian andrews. Leaf/andrews’ return to normal life was not easy. After his release from prison, he was subjected to a travel ban, although he appealed this through the courts.
He told the court he had been a model convict, who used his expertise to help the authorities improve their systems.
Leaf/andrews described his time in brixton as akin to the experience of the main character in the shawshank redemption, where the inmate worked as a private accountant for his jailers.
In recent years, leaf/andrews fought attempts by the revenue to have him repay up to stg£100m in taxes it believed he owed.
A hearing took place in 2007 and the court was told leaf/andrews had no money left from his fraudulent activities, that his family trust was in debt, and his investments had lost money.
At some point in the recent past, leaf/andrews also returned to work at the home funding corporation, but he is not a shareholder or director.
Mr ashken, the new owner of the company, said andrews is a consultant for home funding corporation, but he has no other connection to it. Mr ashken’s co-director at the company, sophie leighton, has other business links to the convicted fraudster.
Ms leighton, 23, is a director of good morning hotels ltd and eunoia ltd. Both of these are owned by leaf/andrews. He was a director of them. Company records show that eunoia is a consultancy company owned by leaf/andrews, but he joined it under the name ian leaf.
Ms leighton became a director of eunoia in november 2009.
She did not become a director of the home funding corporation until may last year.
Separately, eunoia had its address at the same office suite, on waterloo road, london, as home funding corporation’s uk parent company, city corporation. It relocated last month.
Earlier this week, the irish examiner contacted leaf/andrews through the phone number provided to customers of the home funding corporation.
Although it was a dublin number, it was automatically redirected to an office in england.
Leaf/andrews was also contactable through the phone number for the firm’s parent company, city corporation ltd.
Leaf/andrews did not make a statement. He said a person called ian leaf “did not exist” and all questions related to the company should be sent to its director, mr ashken.
Mr ashken said he and ms leighton are the only directors of the company and leaf/andrews was only hired as a consultant.
He said, as directors, they operate without any external interference.
“hfc is properly established and operates entirely within the law,” he said.
Mr ashken said it takes its reputation seriously and would vigorously prosecute anybody who sought to undermine that with “inaccurate, incomplete or otherwise defamatory details”.
The subprime sector
Home funding corporation, and a company it bought loans from, wise finance, operate in a legal, but unregulated, space in the irish financial sector.
Because they are not licensed, their conduct is not subject to policing by the central bank.
Subprime customers who have complained about their plight to the central bank have been told there is nothing that can be done, because if a company is not licensed it is not bound by the industry rules.
In one letter from the office of the financial regulator, a customer was told there was little that could be done.
“firms that hold no authorisation or licence from the central bank are not subject to the provisions contained in the consumer protection code, which the majority of entities/firms that are authorised/licenced by the central bank adhere to,” it said.
The lack of regulation in the subprime sector has been raised in the dáil on a number of occasions by sinn féin td martin ferris.
He has pointed to the high interest rates being charged of customers of wise mortgages and the wise finance company, as well as other, similar businesses.
And he said the government needed to act to close the loophole in which subprime lenders operate.
“some of the borrowers who have contacted me are under extreme stress and, indeed, duress. In some cases, the lender’s immediate family do not even know of the difficulties involved, and that isolation, along with the burden of often huge repayments, along with the threat of losing their home, can place an intolerable pressure on some people,” he said.
Mr ashken, the director of the home funding corporation, said it operates within the law and although it has opted not to be licensed, it sticks to the rules.
“although unobliged to do so because it is not a regulated entity, the company adheres fully to the marp,” he said.
Https://www.Irishexaminer.com/lifestyle/features/humaninterest/return-of-the-playboy-fraudster-222847.Html
Https://www.Mirror.Co.Uk/news/uk-news/fraudster-back-business-after-stealing-18999815
British Fraudster Ian Leaf / Ian Andrews lost another reposession case for Elstree
HOME FUNDING CORPORATION LIMITED PLAINTIFF
AND
NIGEL BANNON AND MARK BANNON DEFENDANTS
JUDGMENT of Ms. Justice Eileen Creedon delivered on the 26th day of July 2019;
Introduction
1.
The plaintiff in these proceedings is Home Funding Corporation Limited who the Court was informed is now known as Elstree Mortgages Limited and is seeking the sum of €965,641.21 by way of capital and interest on foot of a loan of IR£15,000 advanced to the first named plaintiff Nigel Bannon in and around the 26th May, 1999.
2.
This claim is denied by both defendants who represented themselves in these proceedings.
Pleadings
3.
This matter was commenced by way of plenary summons dated the 16th December 2013
when the plaintiff made a claim for the following: -
(i) An order for specific performance of the agreement between the first named defendant Nigel Bannon and Secured Property Loans Ltd. (the original mortgagee) dated the 19th May 1999 (the commitment letter) wherein the first named defendant agreed to and indeed did, on the 26th May 1999, grant a first legal charge (the indenture of mortgage) over the lands described in the schedule hereto (the secured property) to the original mortgagee as security for a loan of IR£15,000 (the loan) which on foot of and in reliance of the commitment letter and the indenture of mortgage was advanced by the original mortgagee to the first named defendant on the 26th May 1999 and which indenture of mortgage was transferred to the plaintiff by deed of transfer dated the 15th June 2000.
(ii) A declaration that by virtue of the commitment letter the indenture of mortgage and the loan, the plaintiff holds an equitable charge (the equitable charge) over the secured property.
(iii) A declaration that the amount due and owing by the first named defendant to the plaintiff being the sum of €350,735 as of the 26th September 2013 (together with continuing interest) stands well charged against the secured property.
(iv) An order declaring that the equitable charge ranks in priority to any estate, interest or title (if any, which is denied) held by the second named defendant in the secured property.
(v) A declaration that the purported transfer of the secured property by the first named defendant to the second named defendant (the purported transfer) is void for breach of Clause 14(K) of the indenture of mortgage.
(vi) A declaration that the purported transfer is a fraudulent conveyance and void.
(vii) An order setting aside the purported transfer.
(viii) An order for possession of the secured property.
(ix) Damages in addition to and/or in lieu of specific performance.
(x) Damages for breach of contract, negligence, breach of trust, causing loss by
unlawful means, interference with the contractual relations and conspiracy.
(xi) Further or other order.
(xii) The costs of and ancillary to these proceedings.
4.
By virtue of a statement of claim delivered on the 29th July 2014 the plaintiff claimed as follows:
-
(i) An order of specific performance against the first named defendant in respect of his obligations contained in the commitment letter dated the 18th May 1999 and the mortgage dated the 26th May 1999.
(ii) A declaration that the purported transfer by the first named defendant of his interest in the property comprised in Folio 4759F, Co. Cavan (the secure property) to the second named defendant is void and/or voidable and hereby avoided:
(1) For breach of the prohibition or transfer or assignment contained in Clause 14(K) of the mortgage, and/or
(2) On grounds that it is a fraudulent conveyance.
(iii) Further and/or in the alternative, a declaration that: -
(1) The monies advanced to the first named defendant pursuant to the terms contained in the commitment letter and mortgage created a valid legal charge and/or equitable charge on the secured property in favour of the plaintiff in respect of the loan obligations of the first named defendant, and,
(2) The said legal and/or equitable charge over the secured property has priority over any interests in the secured property held by the second named defendant.
(iv) An order directing the defendants to deliver up to the plaintiff the unencumbered title deeds to the secured property.
application documentation in order that their client could consider his position. The letter also sought confirmation as to whether or not a charge had at any stage been registered.
25. Letter dated 12th February 2014, from Steen O’Reilly Solicitors on behalf of their client Mark Bannon, to Crowley Miller Solicitors on behalf of their client Home Funding Corporation Limited, where they confirmed that their client Mark Bannon had no knowledge of any alleged funding arrangement between his father and Home Funding Corporation Limited. They enclosed documentation in respect of the transfer of land on 25th January, 2006 and confirmed that their client Mark Bannon would be fully contesting any claim in relation to this matter and that any recourse that Home Funding Corporation had would be against Mr. Nigel Bannon.
26. Mr. Lonergan was also referred to a copy of a Land Registry Transfer of Charge in respect of folio 4759F County Cavan dated 1st March, 2001 which purported to transfer from Secured Property Loans Limited, being the person entitled to be registered as owner, in consideration of IR£15,000 the benefit of the charge to Home Funding Corporation Limited. The date of the Deed of Charge is blank on the face of this document.
27.This transfer, purports to be sealed by Secured Property Loans Limited in the presence of Fiona Weisz (Director) and a second illegible signature stated to be a director/secretary. Additionally, it also purports to be sealed by Home Funding Corporation Limited in the presence of two illegible directors’ names. No evidence of registration of that transfer of charge
was provided. Neither was there any evidence of this transfer of charge being notified to Mr. Nigel Bannon
28. It was highlighted to the Court by counsel for the Plaintiff that Stephen T Strong Solicitor appeared to act on behalf of both of the defendants in respect of the loan and the transfer of land from Nigel Bannon to Mark Bannon. A copy of the statutory declaration of solvency was furnished to the Court.
29. Under cross-examination, Mr. Lonergan was asked about Secured Property Loans Limited and about Wise Finance Company (Ireland) Limited. Mr. Lonergan indicated that there had been three or four changes of name for the company but stated that he had no knowledge of Wise Finance Company (Ireland) Limited. He confirmed that Elstree Mortgages Limited is the mortgagee, and that the original mortgagee was Secured Property Loans Limited. Mr Bannon put to Mr Lonergan that Wise Finance Company (Ireland) Limited was originally listed as the mortgagee on the face of the mortgage document however Mr Lonergan said he had no knowledge of this company and could not explain why this company was listed as the originator of the loan.
30. A company printout was produced showing that Elstree Mortgages Limited was previously known as Home Funding Corporation Limited and prior to that as Vivier Mortgages Limited.
31. Similarly, Mr Lonergan was also not in a position to make any further comment regarding the opened solicitor’s correspondence. He told the Court that he had no knowledge of the mechanics of the transfer of the loan from the various finance companies that had dealt with the loan since Mr Nigel Bannon took it out in 1999.
32. The second witness for the plaintiff, Mr. Ian Andrews (formally Mr Ian Leaf), was asked by counsel for the plaintiff as to his function in the plaintiff company. He said that he represented the owners of the company called Home Funding Corporation Limited and that he received monthly and quarterly reports from the people who were running the company day to day. He said he is not a director, but represents the shareholders and has responsibility for the operations of the company such as its financial running and that he also assisted with the setting up of computer systems. He said further in evidence that he gives strategic advice to the company on the appointment of lawyers. On further questioning from the Court he confirmed again that he was neither a director or employee but was more like a consultant working for a shareholder. He indicated that his family
trust owns the company. No documentation was produced to underpin this evidence. He informed the Court that his professional qualifications are as a graduate of economics and business and he is a qualified accountant.
33. He said that he had reviewed the Statement of Claim “in minute detail” and had requested employees if he could see a reconciliation between the company’s books, bank statements and the usual management accounts and that he would typically have done this prior to submitting the accounts to the auditor each year. None of this documentation was produced other than the printout. He was referred to the Statement of Claim at page 14, being the print out earlier shown to Mr Lonergan referred to above, and he was asked to comment on the content and format of the statement of claim based on his input. He indicated to the Court that at the time that the loan was made to Nigel Bannon, a different accounting system was in place in the company. He said he designed the statement and is “intimately familiar” with the entries on the statement. He stated that the Statement of Claim was 100% accurate. He said that he was responsible for conversion from an older software system to a more modern system. He gave no evidence in respect of the detail of the documents he said that had been reviewed by employees or the manner in which any reconciliation had been carried out. He gave no other evidence of advancement of the loan to Nigel Bannon.
34. He referred the Court to page 14 of the Statement of Claim which contained the attached printout and says that the starting balance was of IR£15,000, with an interest rate of 2% a month and that the last payment was made on 26th April, 2002. In confirming the date of the last payment he said was made by Nigel Bannon he said that “... it would be inconceivable that the company would record a payment that they had not received” as it would have been vouched against a bank statement. He gave no evidence as to the financial system in place at that time or the basis on which he made this assertion.
35. He confirmed to the Court that that Wise Finance Company (Ireland) Limited was an independent company and must have been listed in error on the face of the mortgage as the originator of the loan. He explained that Secure Property Loans Limited and Wise Finance Company (Ireland) Limited were under the same ownership. He said that Wise Finance Company (Ireland) Limited was one of the companies that introduced the loan to Home Funding Corporation Limited. No documentary evidence was produced in this regard.
36. In cross-examination he was asked by Mr. Mark Bannon if he was originally known as Mr. Ian Leaf. He confirmed that he was and that that he had changed his name. He was asked why he had changed his name and the witness questioned the relevance of that question. This question was not answered as counsel for the plaintiff argued that neither Mr Ian Andrews change of name or his credibility had not been raised in pleadings and was not relevant to issue at hand. That evidence completed the plaintiff’s case
.
Defence Evidence
37. Mark Bannon went into evidence. He indicated that he has to pass through the property contained in folio 4759F County Cavan to get to folio 4758F where he was currently in the process of building his house. He said that his percolation area is also on folio 4759F which services folio 4758F where the house is. Mr. Mark Bannon said that he has been on a mobile home on the property in folio 4759F since 1997 and that this would constitute it as being a family home as he lived there with his son. He said he knew nothing about the loans on the property taken out by his father and was never notified of any issue arising
by Mr. Stephen Strong. He presented the Court with the receipts for stamp duty paid on the property in relation to the transfer of the property from his father to him. He said that without this second folio he cannot get to his new home. He further highlighted to the Court that his water and electricity both come across folio 4759F to get to the new house he was in the process of building at the time the matter came before this Court.
38. Counsel for the plaintiff put it to Mark Bannon that his father signed a statutory declaration indicating that the property was not a family home but Mark Bannon replied that his father was in Dublin and may not have been aware that Mark Bannon was on the site since 1997. He also claimed that he never received this document at the time of the transfer. He was also referred to the letter dated 4th November 2013 from W. O. Armstrong & Company Solicitor, acknowledging the loan, however he indicated that he had no knowledge of the loan and that his involvement was only from 2006 onwards. Furthermore, Mark Bannon stated that he had nothing to do with the original mortgage. Mark Bannon further went on to tell the Court that he was never told about the mortgage and that he was not calling Mr Strong as a witness as he was now retired and therefore he had no way of contacting him and that he had no evidence to give to the Court about the original mortgage. He confirmed that his involvement in the issue was only from 2006 onwards.
39. Mr. Nigel Bannon in his evidence stated that he was denying everything. He said that his defence was lodged in December, 2017 and he proceeded to give sworn testimony. He said that he received no loan and that whilst he conceded that he did sign a loan application form with a Mr. Ron Weisz, he was not sure where all the rest of the signatures came from that were on various other documents produced to the Court. He said that he went to Mr. Ron Weisz as he wanted a loan of IR€15,000. He said that at the time, Ron Weisz told him to sign an application and he would see what he could do but that he did not normally lend money of that value, as it was only larger amounts of money, specifically sums over IR£50,000 that Mr. Weisz would have dealt with at that time. Nigel Bannon informed the Court that he then heard from O’Malley, Cunneen & McCarthy solicitors in December 2013 that he was being brought to court. He told the Court that he only signed the loan application and also asserted to the Court that the claim is statute barred as the plaintiffs were claiming the loan was issued in 1999.
40. He was referred to his signature on the Customer Care Booklet and he said that whilst it may look like his signature, he did not sign it. He said that he never heard of Mr. Brendan Liddy, the witness to the signature. When referred to the signature on the Commitment Letter he said he did not sign this. He said that it looked like his signature but it was not his signature and he also said that Mr. David Soden was only acting as his solicitor for a day and that he was only hired to explain to Mr Bannon what the documents meant.
41. An original copy of the mortgage document was produced to the Court. Mr Nigel Bannon was referred to the signing page of the mortgage document and it was put to him that this document identified him as the mortgagor. He said that it must have been a photocopy or a forgery of his signature. He did however concede that apart from the type of pen that it was signed with it did look like his signature. He confirmed to the Court once more that he never got the loan. Counsel for the plaintiff put it to Mr. Bannon that his solicitor would not witness a forged signature as this would have serious consequences for Mr Soden, including being struck of the Roll of Solicitors. Mr. Nigel Bannon claimed that he used the same pen all the time, never wrote in biro and consequently this was not his signature.
42. He was then questioned about the letter that, he Nigel Bannon, wrote to his solicitor David Soden in respect of the loan on the 26th of May 1995 when he confirmed that there were no Local Authority outgoings charged on the property. He was asked why he would have done this if there was no loan. With regard to the family home statutory declaration he stated that he was never in Mountjoy Square in his life – this was the address recorded for him on the family home statutory declaration bearing his signature.
43. The plaintiff opened the letter of 17th June, 2005 from Killeen & Company solicitors on behalf of David Soden to W.O. Armstrong and argued that it was sufficient to prove the loan, specifically he pointed to the second sentence in the second paragraph which stated, “...we would point out that in fact your client entered into an agreement with Secured Property Loans Limited on 19th May, 1999 for a mortgage wherein your clients specifically on page 3 of the loan agreement stated that the security for this loan was unencumbered and free of liens.” Mr. Bannon was further pointed to the clause in the mortgage
prohibiting the transfer or assignment of the property and Mr. Bannon replied indicating that this was an inter-generational transfer. Mr. Bannon confirmed that he never received any letter demanding payment of money.
Plaintiff’s Closing Arguments
44. Counsel for the Plaintiff said that while High Court proceedings were initiated in 2009 against Mr David Soden they were never served and a notice of discontinuance was filed. Counsel said that again in 2014, High Court proceedings were issued against the Bannons in error and that these proceedings were also discontinued. When asked by the Court as to why the 2009 High Court proceedings were discontinued, counsel for the plaintiff said that they were issued in error. He said further that it may have been due a change in solicitor and that the solicitor’s file was lost. Counsel stated that none of the principles
raised by the defendants meet the test of res judicata. He opened the case of Ulster Bank Ireland Ltd. V. O’Brien [2015] IESC 96 and quoted the following paragraphs: -“Where the circumstances indicated that a reasonable person would have felt
compelled to respond to an allegation in the context of an appropriate commercial relationship where money was due but did not so respond, an admission against interest might be inferred. That whether a failure to answer an allegation would make a declaration against interest of what would otherwise be hearsay was entirely dependent on the factual circumstances, including, inter alia, the relationship between the parties and the circumstances under which an allegation was made. The test must be that failure to respond, in circumstances where denial would clearly be required, would amount to an admission in terms of the conduct of reasonable people.” Counsel highlighted the judgment at para 3 which went on to deal with the swearing of
affidavits and further emphasised the previous point when it was stated that;“...the swearing of an affidavit, and its service in court proceedings, that made allegations that a sum was due could be accepted in the absence of denial, where the form and the content of what was deposed to and the exhibits supporting it carried sufficient indications of reliability.” Furthermore, counsel for the plaintiff said that December 2017 appeared to be the first time allegations of no money and no loan were made by the defendants and that they had solicitors acting for them at different points and times in the past. He said that on the
17th June 2005 Killeen Solicitors wrote to W.O. Armstrong and said that they wanted the Land Certificate lodged. In this letter it is stated that the Bannons borrowed money in 1999 from Secured Loans Property Limited and signed a mortgage. The letter stated that the Bannons got the money they wanted and that the plaintiffs then wanted to register the mortgage. Counsel asserted that the failure to respond to that letter and deny matters is an admission against interest, that in legal terms it is an admission and counsel asserted that there is no satisfactory explanation as to why W.O. Armstrong did not reply to these most basic of things. He said that Mr. Nigel Bannon has accepted that his signature is correct on the original loan application and he also said that this, coupled with the failure to respond to letters, proves to “a high level” that events occurred in the manner outlined by the plaintiff and argued that there is no really coherent basis for finding that a valid mortgage does not exist, apart from forgery and that there was no evidence of forgery.
45. The Court was pointed to s.74 of the Land and Conveyancing Law Reform Act 2009 in respect of fraudulent depositions. Counsel for the plaintiff said that this particular section of the legislation does not amend but reflects the prior law. Counsel f
or the plaintiff went on to say that the mortgage deed was validly executed and asserted that the 2006 transfer to Mark Bannon is void and voidable but also stated that the Court does not need to rule upon this if the Court accepted that clause 14K of the mortgage renders the transfer void.
46. He argued that the issue about Wise Finance Company (Ireland) Limited appearing on the face of the mortgage deed is not a good point as this company only appeared in one of the relevant documents being the mortgage document and therefore the Court cannot infer a different company had the benefit of the mortgage.
47. The judgment of Judge Clarke in the case of Moorview Developments Limited, Salthill Properties Limited, Valebrook Developments Limited, Springside Properties Limited, Drake S.C. Limited, Malldro S.C. Limited, the Poppintree Mall Limited and Blondon Properties Limited v First Active Plc, Ray Jackson and by Order Bernard Duffy v Brian Cunningham
[2011] IEHC 117 was opened to the Court. The case dealt with the issue of mistakes and counsel said that just because in 2009 there was one stray reference to another company should not be grounds to collapse the case and that all other documents such as inter alia, the Loan Application Form and the Customer Care Booklet correctly identified Secure Property Homes Limited and makes no reference to Wise Finance (Ireland) Company.
48. When questioned by the Court about the discontinuance of proceedings against the solicitor, counsel stated that advice was received as to the sustainability and viability of that claim as is necessary in all professional negligence claims and that the advice was that the actual undertaking given by the solicitor was a narrow undertaking to assist with Land Registry queries so therefore the decision was made not to sue him as he had made reasonable efforts to assist.
49. When asked as to what happened between 2005 and 2013, it was confirmed that no action at all was taken between 2005 and 2009 when High Court proceedings against Mr David Soden were commenced but discontinued. Counsel for the plaintiff said that the reason they were discontinued was because the plaintiff company obtained legal advice that they would not be successful in an action against Mr David Soden as he had not given an undertaken to them to register the charge but rather to assist them and he had made reasonable efforts to do this. When asked by the Court why when as asserted by the plaintiff payments ceased in 2002, was the first demand letter not sent until 17th Oct 2013. Counsel said that he could not provide a complete answer and could only assume that the file of correspondence from the solicitors was incomplete. However, he argued that the absence of correspondence does not give rise to the absence of a defence and that the required time limit is twelve years. He said that the twelve years runs from the last payment made which he asserts was on 26th April, 2002 and the issuing of proceedings on 16th December, 2013 stopped the statute running and these are the proceedings that are being prosecuted at trial so therefore these are the proceedings that the plaintiff is relying upon.
Discussion
50. The Court has a number of concerns in respect of the evidence put before it in this case.
These proceedings were fully contested.
(i) There has been considerable delay in the bringing of these proceedings which has not been accounted for. The mortgage is dated the 26th of May 1999 and the last payment is alleged to have been made on the 26th of April 2002. Correspondence
suggests that litigation was contemplated against Mr David Soden in 2004 but was not initiated until 2009 and then discontinued. A copy of these proceedings was not opened to the Court.
(ii) Correspondence with Nigel Bannon’s solicitors continued up to 2004 and then appears to have ceased until the 17th of October 2013 which appears to be the first letter of demand sent to the defendant Nigel Bannon. If there was any intervening
correspondence the plaintiff could not account for it or give any fuller account to the Court. No coherent explanation was provided to the Court as to why the first letter of demand was not sent until the 17th of October 2013 in circumstances where the plaintiff asserts that the last payment from Nigel Bannon was received in 2002.
(iii) The mortgage document put before the court recites Secured Property Homes Limited as the mortgagee. The mortgage document further down on page one in the interpretative provisions on its face recites Wise Finance Company (Ireland)
Limited as the mortgagee. Whilst counsel for the plaintiff argued that this was a mere error, witness for the plaintiff Mr Ian Andrews formally Mr Ian Leaf indicated that Secure Property Loans Limited and Wise Finance Company (Ireland) Limited
were under the same ownership. He said that Wise Finance Company (Ireland) Limited was one of the companies that introduced the loan to Home Funding Corporation Limited, but no further evidence was provided to underpin this
evidence or to precisely explain the interest of Wise Finance Company (Ireland) Limited, if any, in the mortgage transaction.
(iv) A copy Land Registry Transfer of Charge document in respect of folio 4759F County Cavan dated 1st March, 2001 was produced which purports to transfer from Secured Property Loans Limited, as the person entitled to be registered as owner,
in consideration of £15,000 the benefit of the charge to Home Funding Corporation Limited the plaintiff.
(v) This transfer is incomplete on its face as it leaves blank the date of the charge it purports to transfer. No account is taken of any beneficial interest Wise Property Company (Ireland) Limited may have in the loan. It is not clear to the court whether Wise Finance Company (Ireland) Limited had or has any beneficial interest in the loan or whether they should have been a party to the Transfer of Charge.
(vi) No evidence of registration of that transfer of charge was provided or of any attempts to register it. Neither was there any evidence of this transfer of charge being notified to Mr. Nigel Bannon as required.
(vii) The mortgage was never registered as a burden against the property contained in Folio 4759F County Cavan. The Plaintiff argues that the first named defendant refused to consent to the use of the land certificate for that purpose in a letter from his solicitors dated the 23 April 2004 after the Solicitor David Soden had failed to discharge his undertaking in that regard.
(viii) The Court understands that proceedings were contemplated against Mr David Soden but not pursued. No copy of the undertaking said to have been given by Mr. Soden or any other related correspondence was opened. There is no further
evidence of any further action being taken to pursue this aspect after the correspondence from Maurice G Lyons and company Solicitors of the 24th of November 2004 with Mr. Jarred Leaf of Home Funding Corporation Limited and the discontinued High Court proceedings in 2009.
(ix) Mr Mark Lonergan is a director of Elstree Mortgages Limited a company which was previously known as Home Funding
Corporation Limited since 2017. While he identified the mortgage documentation as shown to him, he had very limited
knowledge of the background to the case, he gave no evidence in respect of the advancement of monies to the borrower on foot of the mortgage and was not in a position to verify the contents of the statement of account which was produced in
the format of printout attached to the Statement of Claim.
(x) Mr Ian Andrews, previously known as Mr Ian Leaf, gave evidence in respect of the monies outstanding. The Court did not consider Mr Andrews to be a reliable witness. Despite direct questioning from the Court, the Court remains unclear as to
precisely what his connection is with the plaintiff or these proceedings and the extent of his knowledge of the contents of the printout showing the amounts outstanding. While he indicated that he had reviewed the document and later said
that he had “designed” the document and was 100% certain as to its accuracy the Court remains unsatisfied as to the
provenance of this account in the format of a printout document or the veracity of its contents.
(xi) When questioned as to the last date payment is asserted to have been made by Mr Nigel Bannon, Mr Ian Andrews was not able to go any further than to state that it would be inconceivable that the company would record a payment that it had not
received as it would have been vouched against a bank statement. There was no evidence that he had any direct knowledge of any of the payments made to include the initial advancement or the asserted final payment by Mr Nigel Bannon on the 22
April 2002 and no documentation was produced to underpin the contents of the print out document.
51. Mr Nigel Bannon confirmed that he had signed the Application form and made limited admissions to signing the Mortgage deed. In a fully contested claim the plaintiff opened the case of Ulster Bank Ireland Ltd. V. O’Brien [2015] IESC 96 and argued that the defendant’s failure to respond to the letter from Killeen Solicitors of the 17th of June 2005 to W.O. Armstrong Solicitors was an admission against interest and that this coupled with Mr Nigel Bannon’s signature on the mortgage was sufficient proof that “events had occurred in the manner put forward by the plaintiff”. The facts of that case were not opened to the court but the court looks to the quotation opened from the judgement of Clarke J as follows: “Where the circumstances indicated that a reasonable person would have felt compelled to respond to an allegation in the context of an appropriate commercial
relationship where money was due but did not so respond, an admission against interest might be inferred. That whether a failure to answer an allegation would make a declaration against interest of what would otherwise be hearsay was entirely dependent on the factual circumstances, including, inter alia, the relationship between the parties and the circumstances under which an allegation was made. The test must be that failure to respond, in circumstances where denial would clearly be required, would amount to an admission in terms of the conduct of reasonable people.” The letter relied on dated the 17th of June 2005 is a letter written by Solicitors for David Soden Solicitor to Solicitors for Nigel Bannon in which they reference inter alia the Loan Agreement dated the 19th of May 1999 for a mortgage which they state was signed by Nigel Bannon. Their letter sets out no further detail in respect of the terms of the mortgage. The plaintiff did not set out any further the basis on which it
says that the test set out in Ulster Bank Ireland Ltd. V. O’Brien [2015] IESC 96 has been met in this case.
Decision
52. The plaintiffs seek an order for specific performance against the first named defendant in respect of his obligations contained in the Commitment Letter dated the 18th of May 1999 and the mortgage dated the 26th day of May 1999 between Secured Home Funding Corporation Limited and Nigel Bannon and is seeking the sum of €965,641.21 by way of
capital and interest on foot of a loan of IR£15,000 advanced to the first named plaintiff Nigel Bannon in and around the 26th May, 1999. The plaintiffs further seek a number of ancillary reliefs. The mortgage is not registered.
53. The plaintiffs are not the original mortgagees but contend that they are the beneficial owners of the charge between Home Funding Corporation Limited and Nigel Bannon and in that regard produced the copy Transfer of Charge document above which is incomplete on its face and offered no evidence as to why this was not registered or of any attempts to register it.
54. There has been significant delay coupled with unaccounted for gaps in the chronology of events over a 20-year period.
55. The Court found Mark Lonergan to be a truthful witness but his evidence was severely curtailed by his very limited knowledge or familiarity with this transaction. His evidence went no further than to identify the original mortgage documentation between Secured Property Homes Limited and Nigel Bannon. He stated that he could not give evidence in respect of any of the intervening transactions which the plaintiff says proves that Home Funding Corporation and now Elstree Mortgages Limited are the beneficial owners of that charge. He gave no evidence in respect of the unregistered copy Transfer of Charge document. He could give no evidence in respect of any payments made or amounts outstanding.
56. The Court did not find Mr Ian Andrews to be a reliable witness. He conceded that he had been previously known as Ian Leaf. As stated above despite questioning from the Court, the Court remains unsatisfied as to the precise nature of his role within the plaintiff company and his connection with this litigation.
57. The plaintiff relied on Mr. Ian Andrews evidence to prove the statement of account. Crucially as stated above despite his assertions of having “reviewed” and “designed” the account document he went on to say that it was generated as a result of a reconciliation carried out by employees of the company. No evidence in respect of that reconciliation or the generation of that document was produced. The Court is not satisfied that he is in a position to give evidence to prove its contents. The requirement to prove the accuracy of the statement of account is critical in this case. It recites the date of advancement of the
loan to Mr Nigel Bannon, the amount that the plaintiff says is outstanding and the final payment made which goes to the running of the Statute of Limitations 1957.
58. The plaintiff agrees that the applicable limitation period in these proceedings is 12 years and that this time runs from the point of default which the plaintiff says from the printout document is the last payment made by Mr. Bannon on the 26th of April 2002. The plaintiff asserts accordingly that the issuing of proceedings on 16th December, 2013 stopped the statute running and that these proceedings were issued just inside the limitation period.
59. The Court is not satisfied on the balance of probabilities from the evidence given by Mr Ian Andrews that the last payment received by the company was on the 26th of April 2002 and accordingly is not satisfied on the balance of probabilities that these
proceedings were issued within the applicable limitation period.
60. The Court considers the limitation period to be dispositive of these proceedings.
61. Accordingly, the Court dismisses the plaintiffs claim
List of scammers
People involve in this scam
1. Luigi Wewege. Luigi left Elstree Mortgages in 2016 when it was called Vivier Mortgages. Luigi Wewege now works with Caye International Bank - Belize.
2. Ian Leaf. Now know as Ian Andrews. He is the one who invested his ill-gotten money in Elstree Mortgages. He is the one who is now the owner of Elstree Mortgages.
3. Richard Andrews. Richard works with Ian Leaf and uses his name as the director and shareholder to conceal the identity of Ian Leaf / Ian Andrews.
4. Richard Laurence Ashken. He was the one performing the role of Richard Andrews before he was exposed by RTE Ireland.
5. Laurence Russel Hamilton. Laurence was exposed by Phoenix magazine Ireland and he left after that. He is a good friend of Ian Leaf and Richard Andrews.
6. Kevin Steele. Kevin is now know as Kevin Macleod and many other names. He is an ex-solicitor caught for a bank fraud in the UK. He is the one who helps Ian Andrews in his legal matters.
7. Thomas Daly. Tom was a previous proxy shareholder and director
8. Joan Donnelly. She was also a proxy shareholder and director
List of Solicitors involved in this scam
1. Hanlon and Company, Dublin, Ireland (http://www.hanlonandco.com/)
2. Crowley Miller Solicitors, Dublin, Ireland (https://www.crowleymillar.com/
3. Dockery Solicitors, Dublin, Ireland (http://dockerysolicitors.ie/index.htm)
4. O'Malley, Cunneen & McCarthy Solicitors, Dublin, Ireland (https://cmlaw.ie)
Lender set up to launder cash By John McCarthy
Friday, February 06, 2015--- https://www.irishexaminer.com/ireland/lender-set-up-to-launder-cash-311018.html
At least 30 homeowners are facing repossession despite learning their mortgages were funded through the proceeds of crime.
It has emerged a subprime lender that was set up here in 1997 was part of a complex international structure that was used to launder the proceeds of a £55m tax fraud.
Home Funding Corporation Ltd, which changed its name to Vivier Mortgages Ltd, was set up and funded by English accountant Ian Leaf to invest money he stole from the UK Inland Revenue.
Records from the Crown Court and High Court in England said Mr Leaf used 165 entities around the world, including the Home Funding Corporation, to hide his money and his criminality. Since 2013, 19 fresh repossession actions have been initiated against borrowers whose mortgages were funded by Mr Leaf.
High interest rates have seen borrowers who drew down less than €100,000 confronted with demands in excess of €1m.
The Home Funding Corporation was confiscated from Mr Leaf by the Crown Court in 2007. And, according to company records, it is now owned by a New Zealand businessman.
Under its new name it has been lobbying the Department of Finance not to extend regulation to previously unregulated entities. This was ahead of a draft bill Michael Noonan introduced to the Dáil on Wednesday.
Prior to the confiscation of Mr Leaf’s assets in 2007 more than €7m of his profits were used to fund approximately 150 mortgages in Ireland.
In 2007 the company was part of a list of assets taken over by a court appointed receiver. However, in 2011 the receiver sold the Irish firm to an English buyer who got control of the Irish loanbook.
In 2013 it was first revealed in the Irish Examiner that Mr Leaf, who had changed his name to Ian Andrews, was back working at that English company. In 2014 shares were transferred to a New Zealand businessman.
In correspondence to RTÉ Mr Leaf accepted he established the Home Funding Corporation but denied that it was funded through the proceeds of crime.
© Irish Examiner Ltd. All rights reserved
New Zealand Ministry i snow looking into links between Fraudster Ian Leaf and Vivier and Company
The Ministry of Business, Innovation & Employment's Integrity and Enforcement Team is investigating potential links between three New Zealand registered companies and convicted British fraudster Ian Andrews, formerly Ian Leaf.
The three companies,with the same directors and shareholder, are Vivier and Company Ltd, Vivier Capital Ltd and Vivier Investments Ltd.
A financial services firm, Vivier and Company says it offers current accounts, online savings accounts, debit cards, international money transfers and escrow accounts. Its website touts deposit rates in a range of currencies including the New Zealand dollar that in some cases are north of 6%.
Andrews was jailed in 2008 for defrauding Britain's Inland Revenue out of more than £50 million. After he served his time a 2015 Irish TV report by the RTÉ Investigations Unit linked Vivier to tax fraud, money laundering, and Andrews. Asked about the report by interest.co.nz in 2015, Vivier and Company's then-CEO, Luigi Wewege, claimed the programme contained "untrue and defamatory allegations."
The Crooked Leaf lost again
In the case of HFC (now Elstree Mortgages) v NIGEL BANNON AND MARK BANNON, the Irish courts once again declared that Elstree Mortgages brought a fraud case and the judge also made a special comment about Ian Leaf / Ian Andrews that he is not a reliable witness. The judge knew very well this person is a big crook and HFC was a fraud operation to launder his crime money.
This fraudster will be defeated in all the Irish cases now. The crook is unmasked.
Ian F****** Andrews
What this bastard Ian F****** Andrews currently lives? He will continue robbing people if he is not stopped.
Fraudster back in business after stealing £54m and not paying back a penny
Ian Andrews (aka Ian Leaf) and Kevin Macleod (aka Kevin James Steele) are in news again
https://www.mirror.co.uk/news/uk-news/fraudster-back-business-after-stealing-18999815
Fraudster back in business after stealing £54m and not paying back a penny
One of Britain’s biggest fraudsters is back in business – even though he stole £54million from the taxman and never paid back a penny.
Conman Ian Leaf, nicknamed ‘The Tea Leaf” has changed his name and now allegedly runs an offshore company with another ex-convict.
Leaf was sentenced to 12-and-a-half years jail in 2006. On top of the £54m he stole through tax refunds, Inland Revenue investigators found he had amassed an extra £43m in profit.
The ex-car salesman lived the high life in a chateau on Lake Geneva, but when he was told to pay back some of the cash he claimed it had vanished.
But Leaf, 65 – now called Ian Andrews – was this week unmasked in court as the man behind Consult Partners.
The court heard that Kevin MacLeod, 59, helps to run the company as a consultant.
MacLeod was called Kevin Steele in 2008 when he was kicked out of Mishcon de Reya – the legal firm used by Princess Diana in
her divorce.
He was later jailed for five years for helping steal £18.4million.
The former director at Queens Park Rangers football club helped forge documents as part of a dodgy bid to buy luxury property on a resort where footballer Wayne Rooney owned a villa.
Despite their fraud convictions, neither Andrews or MacLeod were ever barred from running businesses.
And now they stand accused of sharp practice again by their former business partner Arpit Ahuja.
Consult Partners are suing Mr Ahuja for £75,000 for allegedly stealing business ideas and taking clients. But Mr Ahuja denies the allegations – and is now counter-suing for £18,250. He says they parted ways after he found out about Andrews’ past.
The Central London County Court heard this week that Mr Ahuja also claims Andrews siphoned off £55,000 that was owed to creditors and ploughed it into other companies.
Mr Ahuja also claims he was kept in the dark about MacLeod’s fraud conviction and previous name.
Andrews, who caught the bus home after this week’s disclosure hearing, is also accused of moving business to a Seychelles tax haven to conceal his involvement. The court heard Andrews denied claims Mr Ahuja was threatened, abused and blackmailed.
As the Tea Leaf in 2006, Andrews was given a confiscation order to pay back £16.25million.
But he told Southwark Crown Court he was in debt, blaming 9/11 and the burst of the dotcom bubble.
Last night he told the Sunday Mirror he had disclosed his involvement in all firms in accordance with the law and said MacLeod was not operating any businesses.
He said: “To allege or imply I have registered new businesses in the Seychelles in order to mask my involvement in these or other businesses is untrue.”
He claimed the only wrongdoing in the case was committed by Mr Ahuja and his wife and said Mr Ahuja’s “bare assertions have been made without any supporting evidence”.
He said all of his assets were passed to an official receiver after his conviction and no business was being run as a result of failure to seize his assets.
Vivier Mortgages Ltd - v - Lehane
JUDGMENT of Ms. Justice Baker delivered on the 12th day of October, 2017.
1. This judgment is given in the appeal of the plaintiff against the decision of the Circuit Court of 21st March, 2017 where His Honour Judge O’Donnabháin refused to grant an order for possession of certain lands held by the defendant subject to a charge made on 28th August, 1997 with the Wise Mortgage Company Limited. The plaintiff is the successor in title of the mortgagee and the charge is registered as a charge on Folio 67556F Co. Cork.
2. The parties have agreed that, as the application is one for summary judgment for possession, the test identified in the Supreme Court decision of Aer Rianta c.p.t. v Ryanair Ltd [2001] IESC 94, [2001] 4 IR 607 is applicable, and that the test to be applied is whether the defendant has disclosed an arguable defence.
3. The facts of the case are quite unusual. The civil bill for possession dated 21st October, 2013 was grounded on an affidavit of Richard Laurence Ashken a director of the plaintiff, the successor in title of the original mortgagee. The original loan of £21,000 was advanced on 1st September, 1997 by the Wise Mortgage Company Limited to the defendant. The loan is not denied. The loan agreement provided for the making of equal monthly payments, the last of which payments was made on 1st August, 2011. The mortgage was for the term of fifteen years and equal instalments of £431.67 were to be made, making a total amount repayable of €77,700.60 and showing an APR of 29.2%.
4. The plaintiff avers that as of 1st September, 2013 the redemption figure on the mortgage loan was the sum of €90,622.44, and that following demand of that sum, the plaintiff sought to exercise its statutory powers contained in s. 19 of the Conveyancing Act 1881. Thus far the matter is not contentious.
5. The defendant seeks to defend on a number of grounds, which I will deal with in sequence.
Interest rate
6. The defendant argues that the interest rate of 29.2% APR is “oppressive and unconscionable” and that he has in those circumstances an arguable defence. Certainly, seen in the context of current very low interest rates in the Irish market the APR of 29.2% does seem high, and perhaps very high. The plaintiff has conceded the point relating to the interest rate and has agreed to limit its claim out of the proceeds of sale of the secured property to the sum of €40,952.64 plus interest at 18% per annum from 1st September, 2012. That concession will reduce the amount now said to be owed to €155,653.12 as of 1st April, 2016.
7. The borrower states that he did have legal advice at the time of entering into the agreement, and that the monies were borrowed to buy livestock, and not to purchase the property itself which he owned in his sole name, free from encumbrances.
8. An amount of affidavit evidence has been adduced relating to the correct calculation of the interest and the defendant argues that the calculations of the plaintiff are in consequence unclear and not in accordance with the payment provisions contained in the loan documentation or in the “commitment letter” of 16th April, 1997 which provides for 180 fixed regular instalments. Clause 8 of the “commitment letter” provides for a different and reduced monthly payment of £289.92 to be applied “provided that payments are made on or before the due date each month”, and the borrower argues that accounts exhibited by the plaintiff do not adequately show how the plaintiff and his predecessors in title properly applied the reduced payment amount to take account of payments made early or on time.
9. Clause 11 of the “commitment letter” provides that the loan would be in default 30 days after failure to pay a monthly instalment, and provides in bold terms that 18% is the interest rate applicable to “all monies collected due” should default arise. The clause expressly refers to the “Rule of 78” now explained as being a “statutory rebate mechanism in the UK Consumer Credit Act”. The relevant provisions have not been exhibited on affidavit, and I accept as a matter of principle that the “Rule of 78”, if it does provide a means by which interest could be calculated is capable of applying to a loan in the jurisdiction of Ireland, if the reference to “the Rule of 78” is clear, and if there is no impediment to the incorporation by reference by a drafting device of a mechanism adapted from another jurisdiction. However, Mr. Lehane, even at this juncture, says he cannot identify the “Rule of 78”, nor can his financial adviser, and John Vaughan, a chartered accountant engaged by the defendant, has stated in a letter of 11th March, 2015 which has been exhibited before me that he does not understand how the interest is calculated, and that he does not understand on “what basis these rates of interest were to be calculated or applied”.
10. A court hearing an application for summary judgment may in a suitable case, and does in almost all cases, determine the question of interest if such can be ascertained on a calculation, whether that be a simple calculation or one requiring some further engagement and explanation by the parties. I am satisfied however that on the evidence before me that in the present case the basis on which interest can be calculated is opaque and obscure and, while the plaintiff has made a significant concession, it is not possible on the affidavit evidence to ascertain with any degree of certainty the amount of interest, or indeed the extent to which the defendant was in arrears at the date of the demand letter.
11. On that ground alone, it seems to me that the matter is not one suitable for summary judgment.
12. The defendant accepts that he borrowed the principal sum, that he fell into arrears, and that the charge was validly created. He says however, that at the date of demand the amount due by him was a sum of approximately €8,000 and that if that calculation is correct, he would have been in a position to repay the full amount of capital and interest due at that date.
13. The difference between the parties with regard to the amount due is at such a level that it makes it impossible to reconcile on affidavit evidence. This is not a case where the defendant has made a calculation by way of a mere assertion, and the calculation proffered by him, supported by a letter from his chartered accountant, raises sufficient doubts with regard to the true figure owed in respect of the loan for me to conclude that the matter is not one in respect of which an order for summary possession should be granted.
14. In the absence of clarity with regard to the figures, and having regard to the ambiguity in the loan documentation, it is at least arguable that the claim of the plaintiff could fail, either on the grounds that the loan documentation is void for uncertainty, or that the interest rate was not agreed, or amounts to a penalty.
Invalid letter of demand
15. The defendant relies on an argument that the amount stated in the letter of demand is incorrect and the claim was flawed, as the letter of the demand is not sufficient to enable the plaintiff to argue that the loan amount has become due for the purposes of an application under s. 62(7) of the Registration of Title Act 1964.
16. This question has been conclusively determined by Cregan J. in Flynn v. Nation Asset Loan Management Ltd. & Ors. [2014] IEHC 408, where he held that a letter of demand even if it did overstate the amount due “was still a valid letter of demand” (para. 233). The letter of demand in the present case is not a statutory notice such as is found s. 8 of the Bankruptcy Act 1998, but is rather akin to what Cregan J. called a “contractual demand”. The notice therefore, in accordance with that authority does not require to be exact, provided it is clear what is to be done by the borrower. This point cannot succeed.
Unlawful or illegal transaction
17. This is the most unusual aspect of this case. In his supplemental affidavit sworn on 16th March, 2015, the defendant complains that monies advanced by Wise Mortgage Company Limited were “the fruits of crimes”, and “the laundered proceeds of crime”. His affidavit evidence is to the effect that one Ian Leaf, also known as “Ian Andrews” is a “convicted fraudster”, who engaged in a “complex web of transactions” inter alia, through the unregulated sub-prime lending market. Confiscation proceedings, similar to those that might be instituted by the Criminal Assets Bureau (“CAB”) in this jurisdiction, were taken against Mr. Leaf/Andrews in the jurisdiction of England and Wales. It is arguable that the original mortgagee, the Wise Mortgage Company Limited transferred its assets to Home Funding Corporation Limited of which the present plaintiff is a direct successor in title.
18. Apart from his averment on affidavit, the defendant exhibits a newspaper article from the Irish Examiner newspaper dated 16th February, 2013 and a copy of an RTE News report of 6th February 2015 which refer to the establishment by Mr. Leaf/Andrews of a company, Home Funding Corporation Limited, which was funded through an “investment vehicle” basis in the Bahamas. Richard Ashken was identified as a “controlling party” of that company and it is he who swore the grounding affidavit in the present proceedings. Mr. Leaf/Andrews was sentenced to twelve and a half years in jail, reduced to ten years on appeal, for money laundering and tax offences. The exhibited documents are in no sense evidence, but they do elevate the averments of Mr. Lehane in his supplemental affidavit to more than “mere assertions”, and do in my mind raise a sufficient basis on which a court might be concerned to investigate the providence of the funds.
19. The affidavit of Joan Donnelly on behalf of the plaintiff does not deny that Home Funding Corporation Limited was one of the assets confiscated from Mr. Leaf/Andrews, nor does she deny any of the so-called “money laundering” activities of Mr. Leaf/Andrews. She says however, that as a matter of English law the purchase by Home Funding Corporation Limited of the confiscated assets cured “any taint that could possibly have affected any aspect of the plaintiff’s business” and as such, the monies advanced to the plaintiff were not in any way tainted by illegality.
20. That is an argument which requires evidence of foreign laws and none was adduced before me. While the proposition that a sale by CAB of confiscated assets can pass an unencumbered title is one that could be readily be accepted, the agreement by analogy with foreign legislation is not one that I can accept without evidence.
21. Accordingly, I consider that the defendant has shown he has an arguable defence on the ground of illegality, and sufficient to defend an application for summary judgment.
22. In all of the circumstances, the appeal from the Circuit Court is dismissed. The matter cannot be determined on affidavit.