The High Court stayed the appointment of a receiver to Denis English’s unregistered property at Knocklofty House, near Clonmel, until Promontoria (Aran) Limited establishes that it had the legal right to appoint him. The court did not order the company to disclose the transfer documents, and did not make a final finding that the mortgage transfer was invalid.
Mr English had mortgaged the unregistered land to Ulster Bank Ireland Limited in 2007 and entered into facility agreements with the bank between 2008 and 2011. In January 2015, the bank told him it had agreed to transfer his loans to an affiliate of Cerberus Global Investors.
The evidence described a mortgage sale deed dated 16 December 2014 between the bank and Promontoria Holding 128 B.V., followed by documents dated 12 February 2015 concerning a transfer to Promontoria (Aran) Limited. The court said the mortgage sale deed and deed of novation had not been disclosed. The company had supplied redacted copies of other transfer documents.
Promontoria (Aran) appointed Ken Fennell as receiver on 6 November 2015. Mr English challenged the company’s entitlement to do so and sought the full suite of transfer documents, including unredacted versions. At the hearing, he also raised concerns about the appointment instrument’s wording and the execution of the deeds. The company argued that it had provided sufficient evidence, that commercially sensitive material was properly redacted, and that the execution issue had not been raised in his affidavits.
Justice Murphy said the registration of a transfer in the Registry of Deeds was not a warranty that it was valid. The limited documents before the court did not clearly show how Promontoria (Aran) acquired the mortgage, particularly because the appointment instrument referred to a transfer from Promontoria Holding 128 B.V., while the registered transfer identified Ulster Bank entities as transferors.
The court said Mr English was entitled to proof of ownership before being required to give up possession to a receiver. It directed no specific disclosure order, leaving disclosure to the company, but observed that without supporting documents its legal entitlement might remain unestablished. It also said the company could not redact the identities of the people who signed and witnessed the relevant deeds on Ulster Bank Ireland’s behalf, or proof that the signatory was authorised. The court left open whether certain redacted background and recital sections had to be disclosed, depending on whether they explained the transfer.
The stay was to remain in place until the company established as a matter of law and fact that it had the right to appoint Mr Fennell. The source does not record any later decision or whether that proof was supplied.