The High Court granted receiver Simon Coyle interlocutory relief concerning a Waterford rental property and limited orders concerning two sites in Wexford. It dismissed two of Philip O’Brien’s three sets of proceedings, but stayed the third pending further submissions on possible vicarious liability.
The judgment, delivered by Ms Justice Murphy on 4 March 2016, arose from applications heard on 18 and 19 February. Coyle, appointed receiver by Investec Bank, sought possession-related relief. Defendants connected with Investec and Mazars sought to strike out O’Brien’s claims.
The court ordered O’Brien and people acting for him to deliver up keys, alarm codes, locks and other access devices for 84 Poleberry, Waterford. It also granted an interlocutory injunction restraining them and people with notice of the order from obstructing Coyle’s possession, securing, marketing or selling the property, or entering or attending there. The court found Coyle had a strong case likely to succeed at trial, damages would not be an adequate remedy, and the balance of convenience favoured the orders.
The Wexford sites at Duncormick raised a separate access issue. Although the court said Coyle’s entitlement to possession of Sites 2 and 5 was clear, his right to grant easements to provide access had not been determined. The court declined the full interlocutory relief sought. It instead restrained O’Brien and people with notice from entering or attending the sites, directed him to allow Coyle access to secure them pending the hearing of the possession action, and gave Coyle liberty to apply. The court said the unresolved access issue made the properties virtually unsaleable until decided.
The court dismissed O’Brien’s 2014 proceedings, which challenged the mortgages and receiver’s appointment and included a trespass claim. His counsel had abandoned the argument that the mortgages were invalid because the named mortgagee was not registered with the Companies Registration Office. The court said no evidence supported the alternative challenge to execution of the receiver’s appointment deeds. It concluded the appointment challenge could be raised in a defence to Coyle’s possession case and that the proceedings, as constituted, were bound to fail.
It also dismissed O’Brien’s 2015 claim for €180,000 in rental monies, finding it unnecessary and better dealt with by a counterclaim in the possession action if his defence succeeded. The court did not decide his separate claim for €6.5 million over an alleged assault at Poleberry. It stayed that case pending further submissions on whether any defendants could be vicariously liable; the judgment said none was alleged to have carried out the assault.