The Court of Appeal dismissed an appeal by Vitgeson Limited and William Farrelly against the dismissal of their claims and judgment for the respondents on a counterclaim involving secured properties.
The appellants challenged the transfer of their loan facilities and security to Promontoria (Arrow) Limited (PARL), the appointment of Tom O’Brien as receiver, and the marketing of properties for sale. They also alleged in the High Court that the respondents breached an undertaking concerning a “For Sale” sign on agricultural land, but did not pursue that issue on appeal. No argument was advanced against the judgment on the counterclaim, which included orders for possession of properties listed in the High Court order.
The Court of Appeal upheld the admission of a redacted copy of the deed transferring the loans and security from NALM to PARL. Evidence from Siobhan Hallissey, who said she was present when the deed was signed, was not challenged in cross-examination. John Burke, a PARL director, also testified to the assignment and ownership; his evidence was likewise not challenged. The court said there was ample evidence of the transfer, including notices sent to the appellants.
On the receiver’s appointment, the court found no error in the High Court’s conclusion that the mortgage documents gave the mortgagee a contractual power to appoint a receiver, even though registration of the transfer of some charges had not been completed before the appointment. The judgment distinguished that appointment power from the power to sell or transfer registered property before the assignment was registered. It also noted that the High Court had not needed to decide whether later registration related back to the appointment date.
The appellants had argued that the receiver, whose role they said was limited to receiving rents, acted unlawfully by arranging sale preparations. The Court of Appeal upheld the finding that the marketing work was carried out by the receiver’s firm as agent for the charge holder, outside the receivership. It accepted the trial judge’s finding that a property services agreement for lands at Black Castle, Navan, had been mistakenly signed using the designation “receiver”. The court concluded that the first respondent was entitled to act as agent in marketing the properties.
The Court of Appeal found no error in the High Court’s findings and dismissed the appeal.