The High Court has dismissed an application by Ardfert Quarry Products to recover crushed limestone it supplied to a residential development at Lixnaw, County Kerry, after finding that the material had become part of the land and was covered by a bank’s security.
The company had sought access to the site and an order directing the receiver of Moormac Developments Limited, which is in receivership, to return the material. The application was made under section 316 of the Companies Act 1963. The court said it had jurisdiction to determine ownership and accepted that the supplier was being unfairly prejudiced if it was entitled to recover the limestone.
The material was supplied in 2008 and remained unpaid for. The supplier had obtained an order in 2010 allowing it to enter judgment for €121,335.75, plus interest and costs. It later sought to recover limestone it said had been used as a base for a new roadway and had not been mixed with other materials. The supplier put its resale value at €30,000 and said it could be removed without damage.
The receiver argued that the material had been used in road construction, was mixed with other materials and could not be removed without significant damage. An engineer retained by the supplier inspected the site in July 2013. His report said machinery could remove the crushed limestone without damaging services and valued the removable material at €24,000. The judge relied on that unchallenged report in finding that the limestone was attached to the surface only by its own weight.
The court then considered whether, viewed objectively, the material had been intended to become part of the land. It found that the limestone had been placed along the line of intended roads and formed the first step in creating roads and a building. The receiver had therefore shown that the material was intended to become part of the land, even though the development had not progressed beyond that initial stage.
The land was owned by Michael McKenna and was subject to a mortgage in favour of Anglo Irish Bank Corporation Limited. The judge said the receiver, appointed over Mr McKenna’s freehold interest, stood in the bank’s position in the dispute. On the assumption that Mr McKenna could not prove otherwise, the court found the limestone was part of the bank’s security and the supplier no longer had title to it.
The judge said the application was not vexatious, but the law did not allow the relief sought. The application was dismissed. The judgment does not order the supplier to pay costs or make any other order in the text provided.