Judgment: 2021-09-27 · Court archive

High Court refuses injunction to stop sale of Cork farmland

The court found no fair question over the charge holder’s right to sell the land or the replacement receiver’s appointment, but left party substitution and costs for further submissions.

High Court · [2021] IEHC 638

Who, what, where, when and why

Who
  • Maurice Foley (Plaintiff)
  • Promontoria (Oyster) Designated Activity Company
  • Stephen Tennant (Defendant)
  • Ulster Bank Ireland Ltd
  • Damien Harper
What

The court found no fair question over the charge holder’s right to sell the land or the replacement receiver’s appointment, but left party substitution and costs for further submissions.

Where

Places mentioned in the report

  • Ballynoran, Charleville, County Cork
  • County Cork
  • Ballynoran
  • Charleville
When

Judgment:

Why

Reasons reported in the judgment

Foley argued that there was no evidence PODAC could exercise the chargee’s rights and, alternatively, that the receiver appointed by PODAC was not validly appointed. The court rejected the challenge to PODAC’s entitlement, finding that registration as owner of the charge proved its transfer. It said there was no fair question to be tried on that point.

The High Court has refused an application by Maurice Foley to stop the sale of nine acres of agricultural land at Ballynoran, Charleville, County Cork, pending determination of his proceedings against Promontoria (Oyster) Designated Activity Company and Stephen Tennant.

The application sought to restrain a sale of the land, which is registered under Folio CK143653F and secured by a charge originally held by Ulster Bank Ireland Ltd. The charge was registered in 2009. Promontoria (Oyster) Designated Activity Company (PODAC) became its registered owner in 2017.

Foley argued that there was no evidence PODAC could exercise the chargee’s rights and, alternatively, that the receiver appointed by PODAC was not validly appointed. The court rejected the challenge to PODAC’s entitlement, finding that registration as owner of the charge proved its transfer. It said there was no fair question to be tried on that point.

Stephen Tennant was appointed receiver in May 2019, discharged in November 2020, and replaced that day by Damien Harper. The court found the landowner had not been told of Harper’s appointment until January 2021, after an auction had been scheduled for 16 December 2020 and after the injunction application was issued. The judge said the delay was unsatisfactory and that a debtor should be informed as soon as reasonably possible when a receiver is replaced. However, the delay did not invalidate Harper’s authority.

The court considered the charge’s provision allowing a receiver to be appointed or removed by deed or “under the hand” of an official or manager. It concluded that PODAC directors could act as managers for this purpose. The judge found that Tennant’s appointment and discharge, and Harper’s appointment, were effective as written instruments signed on behalf of PODAC, even though the evidence did not establish due execution of the relevant documents as deeds.

With no fair question raised about PODAC’s rights or Harper’s appointment, the court did not need to decide the balance of convenience. It refused the injunction. The judge said Foley should have amended the proceedings to add or substitute Harper, and directed that the parties be heard on that issue and on the costs of the application. No decision on substitution or costs is recorded in the judgment.

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