Judgment: 2018-02-16 · Court archive

High Court rejects challenge to receiver’s appointment deeds

The court found the deeds validly executed despite an illegible director’s signature, after affidavit evidence identified the signatory. The judgment addressed that issue alone.

High Court · [2018] IEHC 91

Who, what, where, when and why

Who
  • Tom Kavanagh (Plaintiff)
  • Joseph Walsh (Defendant)
  • Ennis Property Finance Limited, now Ennis Property Finance DAC
  • Donal O’Sullivan
  • Jonathan Hanly
What

The court found the deeds validly executed despite an illegible director’s signature, after affidavit evidence identified the signatory. The judgment addressed that issue alone.

Where

Places mentioned in the report

  • Co. Kerry
When

Judgment:

Why

Reasons reported in the judgment

The High Court has rejected Joseph Walsh’s challenge to the execution of two deeds appointing Tom Kavanagh as receiver over properties in Co. Kerry.

The High Court has rejected Joseph Walsh’s challenge to the execution of two deeds appointing Tom Kavanagh as receiver over properties in Co. Kerry.

In a judgment delivered on 16 February 2018, Ms Justice Baker found that the deeds were validly executed and appropriately attested. She ruled that the fact that the director’s signature was difficult to decipher did not invalidate them when the evidence established who had signed.

Kavanagh, claiming appointment by Ennis Property Finance Limited, now Ennis Property Finance DAC, had sought injunctive relief and possession of properties owned by Walsh. The deeds were made on 18 February and 17 October 2016 under mortgages held by Ennis. The judgment dealt only with Walsh’s argument that the deeds had a material defect in their attestation clauses. The court had already ruled on Walsh’s other arguments opposing the injunction after oral submissions, but invited further submissions on this issue.

Walsh argued that the director’s signature on each deed was an unidentifiable “squiggle”, with no printed name showing who witnessed the company seal being affixed. He said the appointment could not be independently verified from the deeds and was defective.

The evidence included an affidavit from Donal O’Sullivan, sworn on behalf of Ennis, identifying the signatory as Jonathan Hanly, a director of the company at the time. O’Sullivan also said Hanly was authorised to execute the deeds under a board resolution. Justice Baker said the evidence that Hanly signed was not controverted and that the deeds showed the attesting person was a director.

The judge said a signature’s purpose is to signify an attestation, and there is no general legal requirement for it to be decipherable. The question was whether the evidence reasonably supported the instruments’ execution. On the evidence before her, she found the deeds objectively valid and correctly executed.

Justice Baker said it was good practice for a director attesting a company seal to be identified legibly, since it may be necessary to establish that the person was authorised. A person examining title could seek a statutory declaration confirming who affixed the seal.

The court was satisfied that the proofs in this case were established and that Walsh’s arguments were not made out in fact or law. The judgment resolved the attestation challenge; it does not state a new order granting possession or determine the remaining injunction issues.

Read the original court judgment

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