The High Court ruled that Ulster Bank Ireland Limited was entitled to appoint a receiver over a retail garage and service station in Glenbeigh, County Kerry, and ordered the defendant to deliver up possession of the property. It also dismissed the defendant’s counterclaim for trespass, breach of contract and damages under an undertaking given by the receiver.
Mr Justice Feeney delivered judgment on 30 July 2012 in proceedings brought by Brian McEnery, the receiver, against Tim Sheahan. The dispute concerned whether the bank’s power to appoint a receiver under the Conveyancing and Law of Property Act 1881 survived its repeal by the Land and Conveyancing Law Reform Act 2009.
The mortgage debenture was made in October 2007. It did not expressly set out a power to appoint a receiver, and the bank relied on the statutory power in the 1881 Act. The defendant argued that repeal of that Act removed the bank’s power and that the receiver had no right to enter the property. He also challenged the charge because it had not been registered when the receiver was appointed, and said the bank’s demand for immediate repayment was unreasonable.
The court distinguished this dispute from an earlier decision, Start Mortgages v Gunn, which concerned a separate statutory procedure for seeking possession. It held that the receiver’s appointment involved a substantive right acquired when the mortgage was created, even though the right could only be exercised after default. The court found that the Interpretation Act 2005 preserved that acquired right despite the later repeal.
The charge had been registered in August 2011, after the receiver’s appointment, but the court said registration was effective from the date the application was made, 15 June 2009. That was before the appointment. On that basis, the non-registration issue was moot.
The court also rejected the claim that the demand was precipitous. It found that the demand followed extensive discussions and negotiations, and that more than €1.8 million was due when the receiver was appointed after the defendant failed to pay on demand.
The judgment grants the declarations sought by the receiver, orders the defendant to deliver up possession, and dismisses the counterclaim. It does not describe the decision as an interlocutory order: the earlier interlocutory possession order had been made in April 2011, before the full hearing addressed here.