The Court of Appeal has dismissed Damian and Irene Gibney’s appeal against interim orders requiring them to deliver possession of three properties to receiver Ken Tyrrell. The court affirmed the High Court order but did not decide the full dispute over the loans or whether they and the mortgages were ultimately transferred to Cheldon Property Finance DAC. Those matters remain for trial.
Tyrrell had been appointed receiver over the properties after Cheldon demanded repayment of the loans in January 2016. The properties were a unit in Coolock, Dublin, a property in Pinebrook, Trim, and a unit in Trim Retail Park. The High Court’s March 2017 order required the Gibneys to hand over possession, keys, alarm codes and access equipment pending trial, and restrained them from obstructing the receiver.
The Court of Appeal rejected the Gibneys’ challenge to service on Irene Gibney, finding that the High Court was entitled to proceed after documents were served under an order for substituted service. It also refused a separate motion seeking rulings on points of law, saying an appellate court could not conduct a preliminary trial and the requested declarations were not suitable for that motion. The arguments raised in that motion could still be considered as part of the appeal.
The Gibneys argued that their loans had been paid in 2014 by a promissory note. The court said no note had been produced and that a bank computer record referring to a note sent by the People’s Mortgage Protection Vehicle did not establish that the bank accepted it in settlement. It also rejected arguments that Cheldon did not own the loans or could not appoint a receiver. The registered charges supported ownership of the securities, and the evidence gave Tyrrell a strong arguable case that the loans and securities had been sold to Cheldon. The court stressed that the final question of whether they were assigned remained for the High Court trial.
The appeal court also found a strong case that Tyrrell had been validly appointed after repayment demands exceeding €1 million were not met. It rejected challenges to affidavit formalities, and said three new arguments raised during the appeal were not properly before it. The court concluded that no appeal ground justified disturbing the interim order and dismissed the appeal.