The High Court has refused a homeowner’s applications for an injunction and contempt orders in a dispute involving a mortgage receiver and property management company. The judge found no fair issue to be tried that would justify restraining the receiver, and said delays in filing affidavits did not amount to contempt of court.
The judgment, delivered by Mr Justice Rory Mulcahy on 20 July 2023, concerned three motions brought by Patrick Fitzsimons. He claimed the defendants had defamed him with statements about mortgage payments and had threatened to trespass at his property. He had not yet delivered a statement of claim in the underlying proceedings.
The court said Fitzsimons pursued an injunction application and a contempt application based on the defendants’ failure to file replying affidavits in line with a court direction. He did not pursue the first contempt motion, which alleged continuing defamation.
Fitzsimons’s affidavit described visits to the property by representatives of the receiver and property manager in August, September and October 2022. Among other things, he said they sought occupancy details, offered occupants money to leave, and told them to stop paying rent to him. In an October visit, they allegedly said he “hasn’t paid the, the mortgage on the Property”. The court said the contents of transcripts of recordings of the visits were not disputed.
A notice of termination was served on the occupants on 14 October 2022, stating the tenancy would end on 3 June 2023 because the landlord intended to sell the property.
The judge said issuing court proceedings did not automatically stop a receiver from acting. Fitzsimons had not challenged the validity of the receiver’s appointment or provided a basis to restrain her work. The court found no evidence supporting his assertion that there had been no loan default. The first defendant’s evidence was that arrears stood at €24,452.02 on 31 January 2023, down from €57,446.69 in 2014, after monthly payments resumed. The judge said the statement that the mortgage had not been paid in full was, on its face, correct. The injunction was refused.
The court accepted that the first and second defendants filed replying affidavits late, but found no prejudice to Fitzsimons. It said the third defendant had no obligation under the relevant order to file an affidavit, and that the delays did not engage the court’s contempt jurisdiction. The contempt application was refused.
The judge proposed making no order as to costs on the motions. Either side could file submissions seeking a different costs order within ten days, with replies due within a further ten days. The matter was listed for mention on 10 October 2023 to make final orders.