The Court of Appeal has dismissed Laurence Corrigan’s appeal against the dismissal of his proceedings challenging the appointment of receiver Ken Fennell over four properties securing a loan to Corrigan’s brother, Hugh Corrigan.
In a judgment delivered by Mr Justice Michael Peart on 10 October 2019, the court upheld the High Court’s conclusion that Corrigan’s claim disclosed no reasonable cause of action against the receiver. It found that the challenge to the deed of appointment had no reasonable prospect of success on the evidence before the High Court.
The dispute concerns four properties owned by Hugh Corrigan and included as security for a loan from KBC Bank. Laurence Corrigan said he traded from a supermarket at Oulart, Co Wexford, first under the Londis brand and later as a Spar franchise, and claimed to occupy the premises under a lease from his brother. The receiver had obtained possession of the other three properties. An order for possession also covered Oulart, but Corrigan was refusing to leave, according to the judgment.
Corrigan alleged that the deed appointing Fennell was invalid because the bank signatories lacked authority. The receiver maintained that the appointment was lawful and provided the original deed and affidavit evidence about its execution. The High Court found that evidence compelling and concluded Corrigan had produced no evidence to contradict it.
The Court of Appeal said a judge can consider affidavit evidence and documents on an application to dismiss where the issue is whether a document was properly executed and oral evidence would not assist. It held that the High Court was entitled to conclude that Corrigan’s challenge could not amount to a reasonable cause of action. Proposed amendments adding further heads of damages would not have changed that conclusion, because those claims depended on establishing that the appointment was invalid.
The appeal court did not uphold the High Court’s separate conclusion that the proceedings were an abuse of process because the appointment’s validity had already been decided. It said the earlier decisions arose from interlocutory applications and were not final determinations of validity. In particular, the receiver had not been properly served with Corrigan’s earlier motion, and no evidence of execution had been before the court on that application.
The court did not decide whether Corrigan had standing to challenge the appointment. It also declined to consider new appeal arguments about the receiver’s appointment as receiver rather than receiver-manager, and about the alleged lease, because those issues had not been raised in the High Court. No Isaac Wunder order was made or applied for; the trial judge had only commented that one might be sought in the future. The appeal was dismissed.