The High Court has continued an order preventing the sale of a vacant Monaghan investment property pending trial, but varied it to allow receivers to take possession and rent it out.
In a judgment delivered on 7 June 2023, Ms Justice Eileen Roberts said the borrower had raised fair issues to be tried about the receivers’ powers and appointment, the calculation of arrears and the transfer of the loan. The court did not decide those issues at this interlocutory stage.
The property is not the borrower’s family home. It is one of a number of residential investment properties she owns and had been vacant since March 2022, after a tenant left. The borrower took a €77,400 loan in 2004, secured against the property. The lender’s interest was transferred in 2019 to the fourth defendant, Start Mortgages Designated Activity Company. A demand for €32,912.64 was sent in May 2021, and the judgment records that no payment was made in response.
Receivers appointed in November 2021 arranged for the property to be offered at auction for €100,000 on 26 May 2022. The borrower sought an injunction the day before the auction. An initial ex parte application was refused, but, following a short-notice hearing on the auction day, Mr Justice Dignam made an interim order preventing possession and sale. The property was withdrawn from auction.
At the later hearing, the borrower argued, among other things, that the receivers had no power to sell, were appointed for an invalid purpose or were not validly appointed. She also disputed the interest charged, how payments had been allocated and whether the loan had been transferred. The defendants disputed those claims. The judge said their combined effect met the relatively low threshold for a fair issue to be tried; the defendants had also conceded that threshold was met, without accepting the borrower would succeed at trial.
The judge described the decision as finely balanced. She weighed the borrower’s interest in the property, its value relative to the alleged arrears and the risk that it would be lost if sold against her delay in seeking relief and in advancing the case after obtaining the interim order. She concluded that preventing a sale pending trial carried the least risk of injustice.
The varied order permits the receivers to take possession and earn rental income. The borrower must continue paying €400 a month under her undertaking, and the parties must agree an expedited timetable to trial. The defendants may apply to discharge or further vary the order if the borrower delays again. The court listed the matter for mention on 21 June 2023 to address the final form of order, costs and the trial timetable.