The Court of Appeal has dismissed an appeal by Orlington Company CLG and Declan Rogers against an order correcting the company’s register of members. The order added Ossory Road Enterprise Park Limited (OREP) as a member and removed Mr Rogers. The court said OREP remains the owner of the units for now, unless a court later rules otherwise in separate proceedings.
OREP owns nine units in Ossory Industrial Estate, Dublin 3. Mr Rogers, who formerly owned them, remained on the company’s membership register after their sale to OREP. The company’s articles provide for membership by unit owners and say a member ceases to be one on ceasing to own a unit and on registration of a successor.
The properties were mortgaged to Allied Irish Banks in 2005. After the loans fell into arrears, the lender appointed a receiver in 2016. The loans and security were transferred to Everyday Finance Limited in 2020. The Court of Appeal recounted that the mortgage documents created a 10,000-year term, less the last three days, rather than transferring the freehold.
In April 2021, the properties were sold at online auction to Tigway Limited for €1.424 million, but that sale did not complete. OREP later acquired them for €1.251 million, with the sale completed in December 2021. Mr Rogers alleges in separate plenary proceedings that the sale to OREP followed an unlawful conspiracy to exclude other bidders and was at an undervalue. Those claims have not been determined. OREP’s pleadings say there were two further online auctions, including one at which it bought the properties after competitive bidding.
OREP applied under the Companies Act 2014 to correct the membership register. The High Court granted the application in January 2023 and made its order in March. Mr Rogers and the company appealed, arguing that the register should not be changed before the separate proceedings resolved Mr Rogers’ challenge to the sale.
The Court of Appeal held that the High Court had jurisdiction to decide the title question for the register application and was entitled to do so summarily. It said resolving factual disputes underlying the counterclaim was not necessary to decide whether OREP was the unit owner for the time being. The appeal did not argue that the High Court’s conclusions about the effect of the property documents were wrong.
The appeal court stressed that it was not deciding the allegations about the sale. It also left open a legal question about whether a purchaser implicated in an improper mortgage sale could retain the property; that issue had not been fully argued. It dismissed the appeal and affirmed the High Court order. It proposed that Mr Rogers pay OREP’s appeal costs, subject to any submissions on costs within 14 days.