The High Court has refused Sean and Connie McGonagle’s application for interlocutory relief aimed at stopping a receiver from proceeding with the disposal of secured properties.
The ruling, delivered by Ms Justice Stewart on 10 November 2017, concerned Michael McAteer, who had been appointed receiver over the properties in June 2013. The McGonagles began plenary proceedings in March 2017 and issued their motion for interlocutory relief in June. The hearing took place in stages, concluding on 3 October.
The plaintiffs argued that there was a fair issue to be tried. They relied in part on a complaint they said remained active before the Financial Services Ombudsman, and alleged issues with the guarantees and waivers of legal advice, including a disputed date beside Connie McGonagle’s signature. The judge noted that the court had not been given details of the complaint’s progress, that the receiver was not a party to it, and that key complaint material was missing or difficult to read. She said its contents and the steps taken to pursue it had not been presented clearly enough for the court to assess its merits or relevance to the injunction application.
The court also rejected the plaintiffs’ arguments concerning undue influence and the receiver’s powers. It found the evidence did not establish a fair question to be tried on undue influence, and the plaintiffs had not explained why the receiver’s stated role in preparing properties for sale, followed by the mortgagee exercising the power of sale, was invalid.
Delay was a central concern. The judge said more than four years had passed since the receiver’s appointment, during which three properties had been sold, without the plaintiffs taking proceedings to prevent those sales. She concluded that the delay alone meant the application could not succeed.
The judge further found that the properties were commercial, business or investment properties and did not form part of the McGonagles’ family home. She criticised the plaintiffs’ affidavits for presenting the family home as affected by the receivership, saying they had at least obfuscated the truth and had not been candid with the court. The judgment also said the plaintiffs’ indebtedness exceeded the potential value of the lands and any realistic means of supporting their undertaking to cover losses if relief were granted.
The court refused the application for interlocutory relief. The judgment addressed that interim application; it did not determine the final outcome of the underlying plenary proceedings.