The High Court said it would make interlocutory orders allowing receiver George Maloney to take possession of farmland in County Kildare and requiring Paul O’Shea and Cannon Agri Limited to stop obstructing him. The court left the orders subject to a practical question about whether a crop on the land was due to be harvested.
In a judgment delivered on 19 July 2013, Ms Justice Laffoy found that Maloney had established a serious issue to be tried over his entitlement to possession as receiver appointed by Danske Bank A/S trading as National Irish Bank. She said there was a strong prima facie case that a lease granted by O’Shea to Cannon Agri was void as against the bank and the receiver because the bank had not given written consent. The judge stressed that she was not deciding the lease’s status finally.
The receiver’s application concerned about 31.5 hectares of Folio 976, excluding an area of about 4.5 hectares. The property comprised two non-residential fields used for tillage. O’Shea had granted the company a 24-year lease over much of the folio in 2011, reserving annual rent of €35,000. The mortgage charge prohibited leases without the bank’s written consent.
O’Shea challenged the receiver’s appointment on technical grounds, including the bank’s authority to appoint a receiver over part of the land and the execution of the appointment document. The court rejected those arguments, finding that the appointment had been properly executed. It also rejected his argument that the Central Bank’s Code of Conduct on Mortgage Arrears applied, because the receivership property was non-residential.
The court applied the interlocutory injunction criteria, finding a serious issue to be tried, that O’Shea would not be able to compensate the receiver if relief were refused and the receiver later succeeded, and that the balance of convenience favoured an injunction. The receiver had given an undertaking as to damages to cover potential loss to O’Shea and the company if they ultimately succeeded.
The judge proposed orders preventing both defendants from obstructing the receiver’s possession and from entering or interfering with the receivership property, and requiring them to hand over keys, alarm codes and other access devices. O’Shea’s existing undertakings concerning harassment and contact with the receiver and staff were to continue. The court did not propose orders about collecting rent or disclosing lease documents, which it considered irrelevant or overtaken by events.
Before making the orders, the judge sought submissions on whether a crop was growing on the land and due for harvest within the next few months, and whether the proposed orders should allow O’Shea to harvest it. The judgment does not record the final orders on that issue.