The High Court has ruled that documents dated 24 October 2017 were effective to appoint Ken Fennell as receiver over properties identified in mortgage deeds. The court will hear further submissions before making orders on the remaining parts of the case.
The ruling by Mr Justice Tony O’Connor, delivered on 21 October 2020, addressed one agreed issue left to be determined before final submissions. The appointments were made by Promontoria (Aran) Ltd. The court said that documents presented as deeds could operate as simple instruments in writing to appoint a receiver, without further formalities beyond those shown in the documents eventually made available to the defendants.
The defendants had argued that, because the company chose to appoint Mr Fennell by deed, it had to meet the formalities required for a deed. Their submissions raised questions about whether the documents served in November 2017 were incomplete, whether they had been executed or merely signed, and whether signatures were missing from some documents. The court recorded that no point was then being taken about service of incomplete counterparts. It also said it was accepted that the company could appoint by an instrument in writing under the mortgages or under section 24 of the Conveyancing Act 1881.
The court considered evidence from Donal O’Sullivan about his role as a company director and his signing of five appointment instruments, as well as Mr Fennell’s evidence that he signed confirmations accepting the appointments after receiving the instruments and legal advice. It noted that the defendants were entitled to examine the validity of the appointment and require proof, particularly given that the receiver had sought an injunction against mortgagors.
Mr Justice O’Connor criticised the instruments’ deed-related wording as anachronistic and lacking plain English, but concluded that the appointments were valid. The decision resolves the appointment issue only. The proceedings include requests for orders directing one or more defendants to vacate properties identified by folio numbers. The court said it would hear counsel on all parts of the order to be made after this determination; the judgment does not state that those requested orders have been granted.