The High Court granted an interlocutory injunction restraining receiver Declan Taite from entering and taking possession of agricultural land in County Tipperary, and from exercising powers under a mortgage over it. The order was conditional on an affidavit concerning the landowner’s undertaking as to damages having been filed. The court reserved the question of the motion’s costs.
The injunction was granted pending plenary proceedings brought by Anne Cody. She argues that a demand for €3,481,862.20, made under her guarantee, sought the full debt owed by her husband and his business partner rather than the amount for which she was liable under the guarantee. She also argues that the demand was unlawful and that Taite’s appointment as receiver was therefore void.
Cody’s guarantee, executed in 2006, limited her liability to sums realised from the bank’s mortgage over the lands. The judgment records that the lender’s successor, Kenmare Finance Property Limited, sent a demand in May 2017 requiring payment of €3,481,862.20 by 6 June. It warned that a receiver might be appointed. Taite was appointed on 16 June 2017. Cody’s affidavit said she did not recall receiving the demand; Kenmare produced a certificate of postage.
The parties disagreed about the land’s value. The judgment records the defendant’s estimate at about €600,000 and Cody’s at about €200,000. The court did not decide the value or determine the ultimate extent of Cody’s liability. It held that a bona fide question arose as to whether the demand should have reflected her limited liability rather than the entire facility debt. It also rejected the argument that no demand was required, pointing to provisions in the guarantee and mortgage that contemplated one.
Applying the interlocutory injunction test in Campus Oil, the judge found damages would not adequately remedy Cody if the land were sold before her case was decided. The court was told that a trial date could be obtained within three to four months after pleadings closed. It considered damages adequate for the receiver if Cody ultimately lost and delay caused him loss, and concluded that the balance of convenience favoured the injunction.
The ruling concerns interim relief only. The legality of the demand and the receiver’s appointment remain issues for the plenary proceedings. The judgment was delivered by Ms Justice Tara Burns on 20 December 2018.