The High Court has refused a receiver’s application for interlocutory possession of a property near Kilbrittain, Co Cork, ruling that the application was an attempt to secure a sale the receiver had no power to carry out.
Ms Justice Stack delivered the judgment on 12 May 2022 in proceedings brought by Ken Tyrrell against Sean O’Connor and Cormac O’Connor. The property, registered to the first defendant, comprises about an acre with two warehouses, an office and a yard formerly used as a bus depot. The second defendant did not take part in the application after reaching an arrangement with the plaintiff, the judgment said.
Tyrrell, appointed receiver over certain assets of the first defendant, sought possession and related orders, including delivery of keys and access devices and an order preventing the defendants from collecting rent. In an affidavit, he said he intended to sell the property to reduce the first defendant’s liability to the chargeholder, Promontoria (Oyster) DAC.
The judge said the receiver had no power of sale under the charge or the Conveyancing Act 1881. She concluded that the application was not aimed at regularising matters pending trial, such as enabling the chargeholder or its receiver to collect rents or manage the property. Instead, it sought to achieve a sale through an interlocutory injunction, contrary to the Supreme Court’s decision in Charleton v Scriven. The court refused the relief sought in the notice of motion.
The first defendant also challenged whether the debt and the receiver’s authority had been established. The judge said affidavit evidence and exhibits appeared to show that €301,463.01 was due, although she noted that a direct statement of default would have been preferable. She did not decide an objection that the affidavit contained inadmissible hearsay, saying the issue had not been fully argued. The plaintiff could not rely on a Cork Circuit Court protective certificate because the first defendant had not received prior notice that it would be relied on.
The judgment also discussed, as observations not necessary to the outcome, whether the chargeholder should have sought possession under section 62(7) of the Registration of Title Act 1964. The judge said the receiver’s entitlement to seek possession in the manner used was doubtful, but the point had not been fully argued. She likewise did not make a definitive ruling on objections concerning redactions in a deed transferring the loan.
The refusal was based on the purpose and form of the application. The court did not determine all of the disputes about the loan evidence or the receiver’s authority, and it did not order possession or a sale.