The High Court struck out the Gearys’ proceedings against five defendants, finding that claims against the receiver and Ennis Property Finance duplicated issues in an earlier case, and that the claims against the other defendants could not proceed on the grounds advanced.
In a judgment delivered on 19 November 2018, Ms Justice Ní Raifeartaigh also refused the Gearys’ motion seeking removal of a registered charge or an order stopping the receiver from progressing the receivership. She struck out the proceedings against the Property Registration Authority (PRA) and ordered costs against the Gearys, with execution stayed until the earlier proceedings are determined.
The dispute concerns registered commercial land in County Limerick, where the Gearys conducted a business. Bank of Scotland registered a charge in April 2015 and Ennis Property Finance registered a further charge later that month. Ennis had acquired the Gearys’ loan facilities from Bank of Scotland in 2014. It appointed Tom Kavanagh as receiver in November 2016.
Kavanagh’s possession proceedings began in 2017. The court ordered the defendants to cooperate with reasonable access to the properties and set a timetable for pleadings. The Gearys did not file a defence by a court-ordered deadline. They instead brought separate proceedings in April 2018 against the PRA, Ennis, Bank of Scotland, Kavanagh and the solicitors acting for Ennis and the receiver.
The judge said the claims against Ennis and Kavanagh raised objections that could have been made in the receiver proceedings, amounting to an unnecessary duplication and abuse of process. She struck out the claim against the solicitors because the complained-of actions were taken as agents on instructions and did not form a claim recognised by law.
Bank of Scotland argued that its rights and security had been transferred to Ennis and that it had not enforced the loans against the Gearys. The judge rejected the Gearys’ arguments concerning the cross-border merger, the bank’s entitlement to transfer its mortgage interest, and the sale of the loan to an unregulated entity. She concluded those issues were bound to fail in light of prior court decisions and struck out the proceedings against the bank.
The Gearys’ motion asked the court to require the PRA to remove a charge or to restrain the receiver pending trial. The judge said the motion sought final relief, which could not be granted by motion. She also said interlocutory relief would not be justified, citing the absence of evidence about potential damage, no undertaking as to damages, delay, and the risk that removing the charge would give other creditors priority that could not later be reversed. She said the claim against the PRA was weak and ordered the proceedings against it struck out. The remaining aspects of both sets of proceedings were adjourned to the appropriate Chancery list.