The High Court granted an injunction to receiver Ken Tyrell concerning Unit 4 at the Diamond, Malahide, after finding he had established a fair issue to be tried and that the balance of convenience favoured the relief. The ruling was an interim decision on an injunction application, not a final determination after a full trial.
Tyrell sought orders preventing Kevin Mahon and Aidan Mahon, and anyone notified of the order, from obstructing him or his agents from securing and collecting vacant possession of the property, and from interfering with his work as receiver. The court granted the relief sought in the notice of motion.
The judge found that the defendants had borrowed from Anglo Irish Bank, secured the loans against the property and defaulted on repayment. Gulland Property Finance appointed Tyrell receiver in June 2016, following its acquisition of loans and related security from Irish Bank Resolution Corporation (IBRC). The court was satisfied that Unit 4 formed part of the mortgaged property and that the first defendant’s 2005 facility letter had not varied the mortgage to remove it from the security. The receiver had already taken possession of Units 1, 2, 3 and 5.
The defendants argued that bank charges in favour of the Central Bank might have covered their loans and crystallised before IBRC transferred them to Gulland. They also challenged whether the transfer documents were properly relied on without stamp duty and whether those documents identified the property adequately. The judge concluded that the loan sale agreement and 2015 deed of conveyance and assignment were not liable to stamp duty, and that the deed’s references sufficiently identified the secured property.
On the charges, the court was satisfied on the balance of probabilities that the defendants’ loans and mortgage were not included in the security granted to the Central Bank. The judge also held that the defendants had produced no evidence that the charges crystallised. Even if they had, the judge said, that would not prevent Gulland dealing with the loans and related securities unless the Central Bank intervened to enforce its security.
The second defendant occupied Unit 4, which the defendants said was used as a gymnasium. They asserted that he had acquired business equity under the Landlord and Tenant Act 1980, but supplied no supporting evidence. The court noted the receiver’s undertaking to pay damages if appropriate and found it sufficient protection if the defendants later succeeded at trial. The judge also considered the receiver’s inability to collect rents or market all the units together while Unit 4 remained occupied.
The injunction resolves the immediate application only. The judgment leaves the underlying proceedings for a full trial.