The High Court refused to stop the proposed sale of three Longford land parcels, but left the position of a fourth parcel on Folio LD444 unresolved. It found a fair question about whether Everyday Finance DAC was registered as owner of the charge over that parcel and said it would defer deciding whether to grant an injunction while the respondents considered an undertaking.
Mr Justice Dignam delivered the judgment on 15 January 2024 on Philip and Sinéad Rogers’ application for an interlocutory injunction. The application concerned four parcels; the underlying proceedings concern seven. The plaintiffs challenge the appointment of Luke Charleton as receiver and seek, among other relief, the return of the lands. The court’s ruling addressed only whether the proposed sales should be restrained pending trial, not the final claims.
The plaintiffs argued that guarantees they had given for Terracotta Construction Ltd’s borrowing were released before AIB transferred its interests to Everyday. The judge found a fair question about whether the guarantees had been released, but said the plaintiffs had not shown a fair question that the receiver was appointed on the basis of those guarantees. Everyday had demanded payment under a separate 2010 facility, and the court found no fair issue had been established about the plaintiffs’ alleged liability under that facility. The judge stressed that this was not a finding that the debt was owed.
The court also rejected the plaintiffs’ arguments that there was no contractual power to appoint a receiver and that the mortgage failed to secure the relevant liabilities. Mortgage conditions produced in a late affidavit supplied the appointment power and defined the secured debt. The judge admitted that affidavit, finding it fair to allow the respondents to address points first raised in the plaintiffs’ written submissions.
On Folio LD444, however, the register recorded Everyday as owner of the charge at entry 2a, although that entry had been cancelled before the transfer was recorded. The judge said he could not treat the reference as a correctable error on this application. He found a fair question that Everyday lacked power to appoint a receiver over that parcel unless the register was rectified.
The judge was not satisfied that the plaintiffs had raised a fair question that the marketing or sale process breached the receiver’s duty to obtain the best price reasonably obtainable. He cited the absence of supporting expert evidence and the late raising of the complaints. The proposed sale without vacant possession involved a third-party tenant, and the evidence did not establish that this would depress the price or breach the duty.
The court listed the matter for 1 February to learn whether the respondents would give an undertaking concerning Folio LD444 pending an application to rectify the register. If no undertaking was offered, it would decide whether the balance of justice favoured an injunction. Costs were also left for that date. The judgment did not make a final determination on the register or the underlying proceedings.