The High Court has struck out Thomas Kearney’s proceedings against property consultancy Allsop Ireland, DNG Gillespie Lowe and receiver John Gillespie over the planned auction of seven residential properties.
In a judgment delivered on 15 March 2016, Mr Justice Gilligan found that the claims against the first named defendant were frivolous, vexatious and bound to fail. He struck out the proceedings against the first named defendants under Order 19, rule 18 of the Rules of the Superior Courts and the court’s inherent jurisdiction. He also struck out the proceedings against Gillespie, finding they represented an abuse of process.
The properties secured loans advanced to Kearney by IIB Bank Ireland Limited, later KBC Bank Ireland plc. KBC appointed Gillespie as receiver over the properties under deeds dated 28 September 2012. Allsop was engaged by Gillespie on or about 5 June 2015 to conduct a public auction.
Kearney alleged, among other things, misrepresentation, negligence, breach of fiduciary duty, trespass and interference with constitutional rights. He claimed the receiver’s appointment was invalid and said the auction firm proceeded with the sale despite being notified of that challenge. He also alleged that the firm and receiver had conspired to dispose of his assets.
The court said Allsop was acting as the receiver’s agent in putting the properties up for auction. It found no legal merit in Kearney’s contention that the firm had to withdraw them after receiving notice that he intended to sue.
The judgment did not determine whether the receiver’s appointment was valid. That issue was already before the Court of Appeal in a separate case brought by Kearney against KBC Bank Ireland plc and John Reynolds. The High Court said the appointment’s validity was not appropriate for determination in this application. It struck out the claim against Gillespie because Kearney had already litigated the appointment issue in the earlier proceedings, which were under appeal.
Kearney’s arguments about corporate changes involving IIB Homeloans and KBC Mortgage Bank were also not determined in this case. The judge said KBC Bank was not a defendant here and that any new argument should be raised through the appeal process in the earlier proceedings.