The High Court granted the Bank of Ireland and receiver Tom Kavanagh an interlocutory injunction concerning Gorse Hill, Vico Road, Killiney, after finding that Brian and Mary Patricia O’Donnell were prima facie trespassing on the property.
Mr Justice Brian J. McGovern made the order on 12 March 2015. It requires the defendants to comply with the injunctions sought in paragraphs 2 to 7 of the plaintiffs’ notice of motion. Those requests included vacating Gorse Hill, handing over keys and access equipment, and not obstructing the receiver in securing and dealing with the property.
The judge said the application was interlocutory: it preserved the position pending the plenary hearing and did not finally decide the parties’ rights or disputed issues. He expressly left for that hearing the defendants’ challenge to a 2011 settlement agreement and their allegations of deficiencies in the loan and security documents.
The defendants asserted a right to reside at Gorse Hill, relying on correspondence with trustees, including a 2000 letter of wishes and a 2012 letter. The judge said the property was owned by Vico Limited, not the trustees, and that the material before him did not establish a right of residence for the purpose of resisting the injunction at this stage. He said the defendants could pursue the issues more fully at the plenary hearing.
The court noted that the defendants had agreed in a March 2011 settlement with the bank to provide vacant possession if the bank exercised its security. The judge treated that agreement as binding unless and until a court decided otherwise. He also noted prior High Court and Supreme Court decisions upholding the security documents and finding Vico Limited to be the property’s owner.
The judge rejected the defendants’ complaint that they had been given insufficient time to file a replying affidavit. He said they were already familiar with the basis of their residence claim and were able to set it out despite the short notice.
In assessing the injunction request, the judge said the defendants had returned from the United Kingdom and taken possession of the property around the time of an earlier unsuccessful injunction application by Vico Limited and the O’Donnell children. He found that third parties had been invited onto the premises to prevent the receiver entering. The balance of convenience favoured the injunction, he said, because the defendants did not own the property, lived in the UK, and the plaintiffs needed vacant possession to exercise security rights against debts exceeding €71 million.
The order was interim. The judgment did not finally resolve the defendants’ challenges to the settlement or security documents.