The High Court has ordered that Everyday Finance DAC replace Stapleford Finance Limited as the first claimant in proceedings over competing claims to proceeds from two property investments.
Mr Justice Brian O’Moore made the order on 28 January 2021, granting Everyday’s motion under Order 17, rule 4 of the Rules of the Superior Courts. The proceedings concern proceeds held by Avestus Capital Partners relating to the Mall of Sofia Shopping Centre and Galeria Kazimierz in Krakow.
Stapleford’s claim is that the funds are covered by security Peter Lavelle gave to Anglo Irish Bank Corporation and that was later transferred to Stapleford. Capita Trustee Services Ltd, trustee of a trust whose original beneficiaries included Mr Lavelle, his wife and their children, disputes that the funds are secured. The judgment says Capita is now named Apex Financial Services (Trustees) Limited.
Everyday said the relevant loan rights and securities had passed from Stapleford to it through a November 2019 loan sale and a deed dated 24 January 2020. Its evidence on those transfers was not contradicted. Capita’s affidavit said it had not received notice when the proceedings or claims were assigned to Pepper Finance Corporation (Ireland) DAC, or when Pepper assigned them to Everyday. Avestus took a neutral position.
The judge found that notice had been given to Mr Lavelle by correspondence in February 2020 and, at the latest, to Capita through correspondence with its solicitors in August 2020. He also found that Everyday had made a sufficient case for substitution. Applying the procedural approach set out in an earlier judgment, he did not decide the validity or effectiveness of the underlying transfers. Those questions remain for the hearing of the special summons.
Capita had argued that the transfer documents differed in scope and that evidence was missing or insufficient to show Everyday acquired Stapleford’s claim. The judge considered Everyday’s interpretation coherent and plausible, but expressly made no finding on the instruments’ validity or effect. He also rejected the argument that Everyday needed to show it acquired rights under an October 2006 facility letter, because Stapleford’s pleaded claim relied on a suite of facility letters that did not include that arrangement and said it had been replaced by a January 2007 facility letter.
The order changes the first claimant in the action. It does not determine whether the investment proceeds are secured or who is ultimately entitled to them.