The High Court has granted a receiver limited interlocutory relief in a dispute over a mortgaged property in Co Galway, but has refused to order the occupants to leave or allow the property to be taken into possession and sold at this stage.
In a judgment delivered on 31 March 2023, Ms Justice Eileen Roberts found that the receiver had shown a fair issue to be tried. She ordered relief under paragraphs 3, 8, 9, 10, 11, 12 and 13 of his motion. The judgment does not set out the wording of those numbered paragraphs, so their precise terms cannot be stated from the available text.
The receiver was appointed by Promontoria (Oyster) Designated Activity Company over a property registered to Francis Murphy. The second defendant, Mike Murphy, Francis Murphy’s son, was joined to the case. He said he had occupied the property as his home since 2008. The receiver sought a range of orders, including vacant possession and orders to prevent interference with his efforts to secure and sell the property.
The court found no fair issue had been raised about Promontoria’s registration as owner of the mortgage charge or the second defendant’s claimed entitlement to occupy the property. But it identified an evidential issue about the appointment and discharge of an earlier receiver. The earlier receiver was appointed by the bank in 2012; the current receiver was appointed in September 2017; and a deed discharging the earlier receiver was made in February 2018. The judgment said the evidence did not explain how Promontoria had authority to discharge that receiver.
Because of that unresolved issue, the judge said the receiver’s title was not sufficiently clear to justify possession as of right. She also declined mandatory relief under the stronger test applicable to such orders, observing that possession and sale at this stage could, in practice, bring the proceedings to an end. The court did not finally decide the underlying factual or legal issues.
The judge listed the case for mention on 21 April 2023 to hear the parties on costs and other matters, with directions for exchanging pleadings to be set unless agreed in advance. The judgment says the case should progress more quickly to trial and final orders.