The High Court has refused three companies’ application to prevent Vanguard Property Finance Limited from appointing a receiver over Flannery’s and adjoining Camden Street premises, finding that damages could provide an adequate remedy and that material facts had not been disclosed when an interim injunction was first sought.
The interlocutory application was heard on 7 and 8 October 2013. Mr Justice Kevin Cross delivered judgment on 5 November. An interim injunction had been granted ex parte on 26 September, restraining receiver appointments over the licensed premises at 6 Camden Street and properties at 7, 8 and 8A Camden Street, Dublin 2.
The companies had borrowed more than €13 million under facilities originally offered by Bank of Scotland (Ireland) in 2008. The loans and related security were later transferred and sold to the defendant. The judge found that the loans were in arrears and that an alternative payment arrangement averaging €100,000 a month had not been met.
The plaintiffs argued that the defendant had agreed to revised payment terms and was prevented from enforcing the original facility. The defendant disputed that account. The judge found a fair issue to be tried over whether the parties had agreed to extend the repayment period, or whether the plaintiffs’ reliance on an alleged agreement raised an estoppel issue. He said that finding met the first test for an interlocutory injunction; it did not decide those disputed issues at trial.
The judge said the balance of convenience, considered on its own, favoured maintaining the status quo because a receiver’s appointment and sale could end the business. But he found that damages would be an adequate remedy. The plaintiffs had not proved they would become insolvent if the injunction were refused, and the court considered that any loss could be assessed with accountancy or other evidence.
The court also found significant non-disclosure in the ex parte application. The judgment cites omitted correspondence and information about arrears, missed payments, the loan’s general conditions, and negotiations and inspections connected with a proposed sale of the licensed premises. The judge did not find deliberate deception by the solicitor who swore the initial affidavit, but held that the plaintiffs were significantly culpable in failing to disclose material matters.
The court refused the relief sought. The judgment did not determine the disputed contractual and estoppel issues at trial; it decided the application for interlocutory relief.