The High Court has ordered possession of a shop and adjoining house at 59 Griffith Place, Waterford, in favour of Everyday Finance DAC, while finding that agents of a receiver committed an unintentional trespass when they broke a lock to enter the shop in 2012.
Mr Justice Nolan said on 10 December 2024 that the entry was forcible and therefore not peaceable. He described the trespass as technical, noting that the premises were occupied for about two hours and returned at 6am. He said it would be practically impossible to put a compensation value on the trespass and that justice would be done through an appropriate costs order. The court did not set out a final costs order in the judgment; it said it would hear the parties on what orders should be made.
The possession claim was brought by Everyday, which had acquired the mortgages in May 2024. The judge accepted that the mortgage interest had been transferred and registered, and said the Land Registry entry was conclusive under section 31 of the Registration of Title Act 1964. He ordered possession in Everyday’s favour.
The defendants, Anthony and Anne Elliott, counterclaimed over the receivership, including the appointment of receiver John Coulston, the attempted entry, and the sale of a separate apartment. The judge held that ACC Bank’s 2015 board resolution retrospectively ratified Coulston’s appointment. He rejected claims that Coulston had mismanaged the apartment sale or was obliged to keep the shop trading. The apartment was sold for €55,000 in December 2016; the court accepted evidence that two valuations had been obtained and that the sale was at the best price available at the time.
The entry took place at about 4am on 27 September 2012. The judgment records evidence that Coulston’s agents, accompanied by a locksmith, changed the locks and caused minor damage. The judge found there was nothing unlawful merely in attempting entry at that hour under the mortgage terms, but concluded that breaking the lock made the entry forcible. He preferred other High Court decisions on peaceable re-entry to the approach in Hafeez v CPM Consulting Limited.
The court said the defendants had succeeded to the extent of establishing trespass on their counterclaim, but Everyday remained entitled to possession. The judgment concluded by saying the court would hear the parties about the orders to be made.