The High Court has restrained Everyday Finance DAC, receiver Ken Tyrell and Wilsons Auctions from selling lands in County Tipperary under the existing draft contract and marketing process, pending trial of the action.
In a judgment delivered on 29 July 2022, Mr Justice Dignam found that Michael Nihill had established an arguable case that Mr Tyrell was exceeding his powers by purporting to sell the lands. The court did not decide the final validity of the sale or the parties’ rights. It said the appropriate arrangement pending trial was to prevent a sale on the current basis. The judge said he would hear the parties on the precise terms of the order.
The proposed sale arose from secured loans Nihill had taken out with Allied Irish Banks, whose rights were later assigned to Everyday Finance. The judgment records that he did not make the required loan payments and did not dispute that the money was owed. A receiver was appointed in February 2021. The lands were advertised from 14 September and scheduled for auction on 13 October 2021. An interim injunction had already been granted on 12 October 2021.
The judge found that the receiver’s appointment instruments did not appoint him as Everyday Finance’s agent, despite wording in his acceptance that he would act as its agent. The proposed contract described the receiver as entering the contract as agent of the mortgagee. On the evidence before the court, however, no such appointment had been made. That supported an arguable case that the proposed sale exceeded the receiver’s powers.
Other grounds did not meet the threshold for an injunction. The court found that references in the advertisement to Folio TY213 were an error intended to refer to TY7213, and that the evidence did not establish that Folio TY7211 was outside the receivership. It also found that discussions about a repayment proposal had not advanced because requested details were not supplied. The judge was not satisfied that allegations about marketing or the sale without vacant possession established an arguable case; the latter concern had not been raised in Nihill’s affidavits.
In balancing the parties’ interests, the court considered the value of the lands, Nihill’s debt, the potential difficulty of replacing the farm, and his delay in bringing proceedings. It concluded that restraint of the sale under the current draft contract and marketing process was the fairest course until trial.