The High Court made absolute a charging order over Brian Cunningham’s share in BPI Property Company Limited, securing €920,833.74 plus interest. It refused Cunningham’s application to discharge the charge, but discharged the appointment of a receiver and the order joining the company as a notice party.
In a judgment delivered on 27 October 2006, Miss Justice Laffoy considered the court’s orders made on 3 October, on applications by Clifford Honniball, a judgment creditor. The sum charged represented the €850,000 judgment debt and agreed costs. The court had initially appointed solicitor Frank Murray as receiver over any distribution on the share or its sale proceeds.
Cunningham argued that the charging order was unavailable because the company was private, that the application should not have been made without notice, and that Honniball had failed to disclose other enforcement steps. The judge held that the company fell within the meaning of “public company” in the 1840 legislation governing charging orders. She found the ex parte procedure proper, while noting that the order made on 3 October failed to specify a time for Cunningham to show cause. That defect caused no injustice because he had an early opportunity to challenge it.
The judge also rejected the non-disclosure argument. Honniball had registered a judgment mortgage over premises referred to in an earlier settlement, but the judge found that this did not contradict his statement that Cunningham had not created the mortgage he had agreed to provide. The settlement did not prevent Honniball from pursuing legal enforcement processes until the debt was satisfied.
The receiver appointment was discharged on a separate basis. The evidence before the court included Honniball’s account that the company had received approximately €6 million from a land transaction, held by solicitors for the company. But the defendant’s solicitor stated that no distribution on the existing shareholding or sale of that share was contemplated. The judge concluded that Cunningham had no equitable interest in proceeds of a share sale and remained the legal owner of a share already charged by the court. She therefore held that the receiver could not stand.
The company was also removed as a notice party. The judge said it would be bound by the charging order once served with notice, so joining it had not been necessary. She made no determination on the proposed issue of additional shares, stating that nothing in the judgment should be taken as accepting that the defendant or company could dilute the value of Cunningham’s existing share.
The order varied the 3 October order by making the charging order absolute, discharging the receiver appointment and discharging the company’s joinder as a notice party.