The High Court refused a receiver’s application to vacate notices affecting property at a development in Kilsheelin and Fethard, Co Tipperary, holding that he had brought the application through the wrong procedure.
In a judgment delivered on 31 July 2017, Mr Justice Richard Humphreys gave formal reasons for dismissing the application on 26 July. The court did not decide whether the lis pendens should ultimately be discharged; it refused the application on procedural grounds.
The proceedings concerned five lis pendens applications brought by proposed notice party Eamonn Carthy against the Harrington Partnership and its members from 2014 to 2017. The judgment says Carthy had developed the site from 2005 and said he constructed roads, sewers, a playground and other parts of the development. Some of the applications were registered with the Property Registration Authority; the first was not.
The defendant, Tom O’Brien, had been appointed receiver over some of the plaintiffs’ assets between December 2015 and May 2016. The plaintiffs began separate proceedings against him in November 2016, seeking, among other things, declarations that the properties could not be sold by him as receiver and that his appointment was invalid. Their earlier application to stop a proposed sale to a housing authority was refused by the High Court, and the Court of Appeal dismissed their appeal in April 2017.
O’Brien then applied by notice of motion in the plaintiffs’ proceedings to vacate any lis pendens registered by Carthy. The plaintiffs were not served with that application.
Justice Humphreys said that substantive relief to discharge a lis pendens would normally require a special summons, though a plenary summons was also possible. An interlocutory application could be made by motion only in proceedings properly related to the issue, typically the proceedings in which the lis pendens was entered. The court said a party could not bring a third party into unrelated proceedings and use a motion there to seek discharge of a lis pendens entered in separate proceedings.
The judge also addressed the failure to serve the plaintiffs. He said parties affected by an application should be heard, but did not adjourn the matter to allow service because the procedure used was itself improper. The court’s order was to refuse the application.