The High Court has refused an application by receiver Colin Gaynor for an interlocutory injunction requiring John McDonald to leave farmland in Co Laois, remove bloodstock and allow the receiver to secure and sell the property. The court directed the parties to work towards an early trial, where the contested issues can be decided.
In a judgment delivered on 31 March 2023, Ms Justice Eileen Roberts said granting the mandatory order could lead to the land being sold before the court had a full picture of McDonald’s defence. She stressed that the interlocutory hearing did not determine any final issues of fact, including whether fraud could be established at trial.
Gaynor was appointed receiver by Pepper Finance Corporation (Ireland) DAC in May 2021 over land in Folio LS9703, Co Laois. Pepper held a registered charge arising from a loan originally advanced by ACC Bank plc to David Julian, who became registered owner of the property in 2008. Gaynor sought vacant possession to market it for sale.
McDonald says he acquired the land from Patrick Julian in 1985 under an unregistered deed, in a transaction connected to a loan of £25,000. He says he entered into exclusive possession in 1996 and has farmed the land since. The judge recorded that McDonald’s account was supported, at least in correspondence, by solicitors who acted for him. The judgment also noted that the property’s folio did not record an interest in McDonald’s favour.
McDonald alleges the later transfer to David Julian and the mortgage were fraudulent because, he says, Patrick Julian had already transferred the property to him. The court did not decide whether that allegation is true. It found McDonald had gone beyond a “mere bald assertion” and that it was “by no means certain” the receiver would succeed at trial. The judge said fraud, if proven, could provide grounds for rectification of the register.
The judge also weighed the risks of refusing or granting the injunction. Refusal would postpone the receiver’s exercise of property rights if the claim ultimately succeeded; granting it could extinguish McDonald’s property right if a sale went ahead and the action later failed. She considered refusal the lower risk of injustice overall, noting the land’s long use by McDonald for farming and keeping bloodstock and its proximity to other land he owns.
The court refused the requested interlocutory orders. It directed the parties to agree a timetable and directions for an early trial, and listed the case for mention on 21 April 2023 to address costs and trial directions. The judgment did not determine ownership or order a sale.