The High Court granted an interlocutory injunction preventing Everyday Finance DAC and receiver Ken Tyrrell from proceeding with a planned online auction of 73 acres at Kilbreedy, Co Laois, pending trial of Patrick Hennessy’s action. The order does not permanently prevent a sale of the land.
Mr Justice Allen delivered the ex tempore judgment on 24 February 2022, the day the auction was due to take place. He said the central issue was whether Mr Hennessy had established a fair question to be tried about Everyday’s entitlement to sell the land in the manner proposed.
The property was bought by Mr Hennessy in 2005 with funding from a loan secured by a charge. After the loans were transferred to Everyday in 2019, the company appointed Mr Tyrrell as receiver over 15 Hennessy family properties in 2021. The court noted that his powers as receiver under the charge were limited to collecting rents and profits, and that it was common ground he had no power of sale in that capacity. Everyday had separately appointed him as its agent to market and contract to sell assets.
The judge was not persuaded there was a serious question to be tried about Everyday’s entitlement to appoint an agent to do what it could do itself. Instead, he focused on the proposed sale process. The land had been advertised online in early February, with an auction set for 24 February and an advertised minimum opening bid of €730,000. The judge described the marketing evidence as limited and said the evidence suggested there had been no previous demand for possession before the decision to sell.
Mr Hennessy argued that selling while he or his farming company remained in possession could depress the price. Mr Tyrrell said that concern was speculative. The judge considered Mr Hennessy’s argument had the stronger basis, but said he was not deciding disputed facts on the interlocutory application and was not finding that a sale without vacant possession was necessarily unreasonable. He also noted that obtaining vacant possession could involve time and expense, and that some or all of the family holdings might need to be sold if debts could not be restructured or refinanced.
The judge said the apparent suddenness of the decision, the lack of an earlier demand for possession and the absence of meaningful marketing tipped the balance. He considered damages might not provide an adequate remedy after a sale, and that a permanent injunction could potentially be justified against buyers exposed only to the short online listing. He granted the orders sought and said the case should be managed to an early trial. His view on costs was provisional: that they should be costs of the cause.