The Court of Appeal has dismissed Thomas Markham’s challenge to an order requiring him to give up possession of a property at 12 Woodford View, Clondalkin, Dublin 22, and affirmed the High Court order. The possession order was interlocutory: the court held that Promontoria (Finn) Limited and receiver Tom O’Brien had established a strong case likely to succeed at trial, but did not determine the underlying proceedings finally.
The appeal concerned the High Court’s 24 April 2024 order in injunction proceedings. Markham also appealed an order vacating a lis pendens he had registered against the property, but withdrew that appeal at the hearing. The Court of Appeal awarded the respondents their costs of that withdrawn appeal. For the injunction appeal, it proposed awarding them costs, allowing 21 days from electronic delivery for any party to seek a different costs order.
The judgment recounts that Markham accepted a €260,000 loan facility from First Active in 2005 and mortgaged the property in 2006. Ulster Bank acquired First Active’s loan and security portfolio under a 2009 statutory scheme, and Promontoria later acquired the relevant interest from Ulster Bank. Promontoria was registered as owner of the charge in 2015. The High Court found a strong case that Markham defaulted and that the receiver was entitled to take possession. The Court of Appeal agreed that the unredacted parts of the transfer documents and the folio were sufficient to establish Promontoria’s title for the interlocutory application. It said Markham could require Promontoria to produce its chain of title at trial.
The judgment says the receiver’s agents secured possession in April 2020 after tenants left at the receiver’s request. It recounts that Markham later retook possession and rented the property to others. In 2022, a person living there told the receiver’s agents they had paid a €5,000 deposit and €2,400 monthly rent to Markham. The occupant’s identity was not disclosed in the exchanges described by the court.
The Court of Appeal rejected Markham’s grounds concerning the debt, redactions, hearsay evidence, document copies, inspection of originals, the receiver’s authority, and registration of the charge. It noted that the High Court had recognised Markham was not given an opportunity to inspect originals, but certified copies were available in court and he had not sought to inspect them. The court also rejected his argument that the injunction amounted to summary judgment: the High Court had directed that the substantive case be prepared for trial and preserved Markham’s right to pursue a counterclaim and seek damages if the injunction proved wrongly granted.
The Court of Appeal did not decide the underlying claim at trial. It dismissed the injunction appeal and affirmed the High Court order, while leaving the parties’ substantive claims for determination in the proceedings.