The High Court has refused an application by Richard Farrington to stop the auction of a property in Derrybeg, Rossbrien, County Limerick, scheduled for 17 August 2023.
In a judgment delivered on 11 August 2023, Mr Justice Garrett Simons found that Mr Farrington had not established a serious issue to be tried. The application sought an interlocutory injunction pending the action; the court did not determine the underlying proceedings at trial.
Mr Farrington, who appeared as a litigant in person, argued that the defendants could not sell the property without a court order. He relied on provisions of the Land and Conveyancing Law Reform Act 2009 and argued that the statutory power of sale under the Conveyancing Act 1881 had been repealed without an effective saving provision.
The judge held that the 2009 Act’s relevant mortgage provisions apply to mortgages created after the commencement of Chapter 3 on 1 December 2009. The mortgage at issue was dated 24 September 2003. The court therefore found that those provisions did not require a court order for sale in this case. It also held that the 2013 Act preserved the relevant statutory power of sale under the 1881 Act. The charge holder intended instead to rely on a contractual power of sale in the mortgage deed.
The judge said there was no basis put forward to suggest that the current receiver, Damian Harper, had been invalidly appointed. He also rejected Mr Farrington’s subsidiary objections, including his claims concerning the transfer of the mortgage, registration of the receiver’s appointment, and an alleged assignment involving Mount Street Mortgaging Service Ltd. The judge said there was no evidence before the court of the alleged assignment.
Although it was not necessary to decide the balance of justice after finding no serious issue to be tried, the judge said it also weighed against an injunction. The property had been vacant since 2018, and Mr Farrington had not offered an undertaking as to damages. The judge did not rely on a prior judgment dismissing Mr Farrington’s earlier proceedings, noting a complication over which receiver had been in office when those proceedings were heard.
The court refused the injunction. After hearing separate submissions on costs, it ordered Mr Farrington to pay the defendants’ costs of and incidental to the application, including written submissions and reserved costs. The amount is to be determined under Part 10 of the Legal Services Regulation Act 2015 if the parties cannot agree. The costs order was stayed for 28 days pending an intended appeal, and would remain stayed until the appeal is determined if filed in time.