The High Court discharged an injunction that had allowed a court-appointed receiver to collect rents from five mortgaged properties, after finding that she had significantly and without explanation delayed progressing her claim and breached a court deadline.
In a judgment delivered on 5 December 2024, Ms Justice Nessa Cahill ruled on a motion by Desmond and Mary Grogan to vary or discharge the injunction granted in December 2022. The motion was heard on 21 October 2024. The injunction had permitted receiver Siobhan O’Dwyer to collect rents pending trial, but had refused orders that would have transferred possession of the properties to her or allowed their sale.
The court had directed Ms O’Dwyer to deliver a reply and defence to counterclaim by 2 May 2023. She delivered it on 3 May 2024, about 12 months late. The judge said the proceedings should have been ready to be set down for hearing by the original deadline. The receiver’s affidavits did not address or explain the delay, and she did not swear an affidavit in reply to the motion.
The Grogans argued that Ms O’Dwyer should not retain the benefit of the injunction while failing to advance the case. Her counsel submitted that rent-collection difficulties explained the delay, but the judge noted that this explanation was not in an affidavit and found that the asserted difficulties would not explain the late filing. The judge also rejected the contention that delivering the reply and confirming at the hearing that discovery would not be sought cured the earlier delay.
The judge accepted that the injunction was not expressly conditional on compliance with the trial directions. However, she said a court may discharge an injunction where its beneficiary fails to progress the underlying case expeditiously. She found that the extended delay had prejudiced the defendants, who had been subject to the rent-collection order longer than intended.
The judgment also referred to possession proceedings brought by AIB in respect of the properties. The court had limited information about those proceedings, but considered them relevant to prejudice: it had not been shown what prejudice discharge would cause the receiver, while the defendants could resume collecting rents unless and until AIB obtained an order for possession.
The court discharged the injunction and directed that the proceedings be set down for trial without delay. It stated that the receiver should be liable for the defendants’ costs of the motion, while allowing oral submissions on 19 December 2024 if any party sought a different costs order.