The High Court refused a freezing order sought by builder Thomas McAlister against Churches Estate Agents Limited in a dispute over €150,000 he says he paid towards purchases of two Dublin pubs that did not proceed.
Mr Justice Twomey delivered the ruling on 21 December 2020. The application sought to prevent the estate agency from reducing its cash assets below €150,000 while the underlying action was pending. The judge held that a freezing order can be granted where evidence of past dishonesty supports a risk of assets being dissipated, even without specific evidence of an intention to defeat a future judgment. But he found the evidence in this case did not meet that threshold.
Mr McAlister says he paid €54,000 in connection with the proposed purchase of the Dark Horse pub in Blackrock and €96,000 towards the Kestrel pub in Walkinstown. He claims the payments were for finance-company fees. Churches Estate Agents disputes that account and says €100,000 was used as a deposit for the Kestrel purchase and forfeited when the sale failed. The judgment noted the discrepancy between the €96,000 Mr McAlister says he paid for the Kestrel and the €100,000 said to have been sent as a deposit.
The court also recorded that Mr McAlister paid a further €45,000 to Ben O’Rafferty Solicitors in connection with the Kestrel purchase. That payment was outside the €150,000 claim before the court, though his counsel said it might be added later if the pleadings were amended.
The judge said it was unclear why funds that may be due to Mr McAlister or Carysfort Lounge Limited, a company he jointly owned with Churches Estate Agents secretary John Bayle, had not been returned. He also noted that the agency had not provided account statements clarifying the movement and current location of the money. Those concerns, along with rent arrears and liabilities in company accounts, did not amount to evidence of dishonesty sufficient to justify the injunction.
The court considered two statements attributed to Mr Bayle: that the €54,000 was “just not there” and that some money had been used as a deposit. It found neither established the required evidence of dishonesty, noting inconsistencies in Mr McAlister’s own documents and correspondence about whether the payments were fees or deposits. The judge stressed that these were tentative conclusions based on limited affidavit evidence at an interlocutory stage, before discovery or oral evidence.
The injunction application was refused. The court noted that a motion for judgment in default of defence in the underlying action was due to be heard on 18 January 2021. It asked the parties to discuss outstanding matters before a mention listed for 12 January 2021; it made no final determination of the underlying payment claim.