The High Court has refused an application by six plaintiffs to restrain Everyday Finance DAC from appointing receivers over mortgaged properties and to remove receivers already appointed. Mr Justice Quinn held that, on the evidence before him, the plaintiffs had not established a fair issue to be tried over an alleged agreement extending their settlement indefinitely.
The application concerned a portfolio of 56 commercial and residential properties in Cork, Limerick, Ennis, Kilkee, Nenagh, Tipperary and Tullamore. Downes and Howard Limited, Waymill Limited, Lapovo Limited, Niall Howard, Robert Howard and P.J. Howard had borrowed from Allied Irish Banks and AIB Mortgage Bank. In February 2016, the banks agreed to accept €9.85 million in full and final settlement, subject to payment by 30 June 2016 and interim payments totalling €50,000 a month. The repayment deadline was later extended twice, to 30 December 2016 and then 30 June 2017.
The plaintiffs said a further agreement was made in or around June 2017: the deadline would remain extended for as long as the monthly payments continued. The banks and their successor, Everyday Finance, denied that such an agreement existed. The judgment records that the plaintiffs’ evidence did not explain how or when it was made, who agreed it, what terms were offered and accepted, or what consideration was given. The judge said the continued payments, which were not disputed, could at this stage be treated as reducing the debt; they did not establish the alleged agreement.
Everyday Finance acquired the loans and security in June 2019. It demanded €22.8 million in November 2019 and appointed a receiver over four properties on 24 February 2020, followed by appointments over the remaining properties on 26 February. The plaintiffs began the injunction application on 3 March, and it was heard on 20 May.
Because the plaintiffs had not established a fair issue to be tried, Justice Quinn said he did not need to decide adequacy of damages or the balance of convenience. He added that the decision was based on the evidence for this application and did not determine whether the plaintiffs could succeed at trial. By consent, he granted leave to amend the plenary summons and Statement of Claim to reflect the receivership appointments, but refused the injunction. The underlying proceedings remained to be determined.