The High Court has refused an application by Philip Ward to stop the sale of land in County Monaghan while he pursues a case challenging a charge registered over it. Mr Justice Allen ruled that Ward had not established a fair issue to be tried as to his entitlement to a permanent injunction.
The application concerned about 4.906 hectares in Gragarnagh, registered in Ward’s name. Tower Trade Finance (Ireland) Limited had advertised the land for online auction, with a sale scheduled for 25 February 2021. An earlier auction in December 2020 appears to have failed for lack of interest at a reserve price of €72,000; the later advertisement set a reserve of €50,000.
The charge was provided as security for obligations connected to a settlement of Tower Trade’s claim against Ward’s son, Michael. Tower Trade had financed payments to suppliers of Michael Ward Engineering Limited, which did not repay the money due. Michael Ward had guaranteed the company’s liabilities. The proposed settlement required payment of €100,000 within twelve months, with Philip Ward providing a limited recourse guarantee supported by a charge over his land.
The plaintiff accepted that he had guaranteed his son’s liabilities and charged the land. He argued that he would not have done so had he known that the High Court lacked jurisdiction over the earlier summary proceedings against his son. He relied on a clause in the company’s trading agreement referring to South African law and the non-exclusive jurisdiction of a South African court.
Mr Justice Allen rejected that argument. He said a choice of law was not the same as a choice of jurisdiction, and the clause was non-exclusive. The son’s guarantee, meanwhile, was governed by Irish law and included submission to the jurisdiction of the Irish courts. The judge also found no evidence to support suggestions that the plaintiff had been inadequately advised or that the charge was obtained through misrepresentation. The plaintiff had been advised in writing to seek independent legal advice, and a solicitor recorded that she had explained the agreement and its effect to him.
The ruling dealt with the application for an interlocutory injunction, not the final determination of the plaintiff’s underlying claims concerning the charge and its registration. Because the threshold for an injunction was not met, the judge did not consider the adequacy of damages or the balance of convenience. He also did not decide the defendants’ separate argument that delay was a reason to refuse relief.
The application failed in its entirety. The judge said costs should follow the event, but allowed the plaintiff 14 days to submit reasons why the defendants should not receive their costs or why execution of a costs order should be stayed. The defendants would then have 14 days to reply.