Judgment: 2022-11-09 · Court archive

Court of Appeal dismisses challenge to Slaney Road receiver appointment

The court found Ben Gilroy had no tenancy or other interest binding the mortgagee and upheld the High Court’s injunctions. It dismissed his appeal, with costs provisionally proposed for the receiver, subject to written submissions.

Court of Appeal · [2022] IECA 258

Who, what, where, when and why

Who
  • Ken Fennell (Respondent)
  • Ben Gilroy (Appellant)
  • Christopher Noone
What

The court found Ben Gilroy had no tenancy or other interest binding the mortgagee and upheld the High Court’s injunctions. It dismissed his appeal, with costs provisionally proposed for the receiver, subject to written submissions.

Where

Places mentioned in the report

  • 131D Slaney Road, Dublin 11
  • 89D Lagan Road
  • Dublin 11
When

Judgment:

Why

Reasons reported in the judgment

The Court of Appeal has dismissed Ben Gilroy’s appeal against orders protecting receiver Ken Fennell’s possession of 131D Slaney Road, Dublin 11. The court held that Gilroy had no tenancy or other interest in the property capable of binding the mortgagee, Allied Irish Banks plc, and no standing to challenge the receivership.

The Court of Appeal has dismissed Ben Gilroy’s appeal against orders protecting receiver Ken Fennell’s possession of 131D Slaney Road, Dublin 11. The court held that Gilroy had no tenancy or other interest in the property capable of binding the mortgagee, Allied Irish Banks plc, and no standing to challenge the receivership.

The appeal concerned only High Court proceedings relating to Slaney Road. A separate case involving 89D Lagan Road was not appealed. The High Court had dismissed Gilroy’s counterclaim and granted perpetual injunctions restraining the defendants from interfering with Fennell’s work as receiver, including entering and taking possession of the property. The Court of Appeal dismissed Gilroy’s appeal on all grounds.

The court reviewed evidence that Christopher Noone, the mortgagor, had allowed Gilroy to occupy part of the premises before the receiver was appointed in October 2014. No written agreement existed, no rent or other return was paid, and the proposed rent depended on a dance studio being established and becoming successful. The court concluded that this arrangement did not create a landlord-and-tenant relationship. It said Gilroy had initially occupied with Noone’s permission, but held no estate or interest that bound the bank.

The court also upheld the validity of Fennell’s appointment. It found that the bank’s seal was properly affixed by authorised signatories and that a later board resolution expressly ratified their authority. The mortgage and applicable statutory provisions gave the mortgagee power to appoint a receiver and exercise a power of sale. The court also rejected challenges concerning the formal demand and the receiver’s use of professional agents.

The court said the mortgagor had not challenged the underlying judgment, receiver’s appointment or the bank’s subsequent steps. It concluded that Gilroy could not pursue those challenges on the mortgagor’s behalf. The court’s ruling concerns the Slaney Road appeal; it did not determine the separate Lagan Road proceedings.

On costs, the court gave a provisional view that Fennell should receive his costs of the appeal, to be taxed and ascertained. It allowed Gilroy 21 days from delivery of the judgment to submit written reasons for a different costs order. Fennell may respond, and the proposed costs order will be made if no such submissions are received.

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