The High Court has refused a receiver’s application for interlocutory orders seeking possession of a holiday property in Muckross, Killarney, and protection from interference with his management of it.
Mr Justice Allen ruled on 11 December 2018 that the evidence did not sufficiently establish that the receiver was entitled to possession of the property. He said the evidence also did not show that damages would be an inadequate remedy. The decision was made at an interlocutory stage and did not finally determine the validity of the receiver’s appointment or the underlying transfers of the loans and security.
The plaintiff said he had been appointed receiver over the property by AIB Mortgage Bank in 2016, and that his appointment was later continued after Beltany Property Finance acquired the loans and security. The defendant disputed the appointment and the transfers, and argued that the plaintiff had not shown how he was entitled to seek possession.
The judge found a gap in the evidence about how the appointment by AIB Mortgage Bank had been made. Although the appointment deeds referred to a 2006 transfer scheme, the evidence did not include the scheme documents needed to verify that the Muckross loan and mortgage were included. The judge said the evidence had not established that AIB Mortgage Bank was entitled to appoint the plaintiff. He emphasised that this did not mean the appointment was invalid, only that it had not been sufficiently proved for this application.
The application also followed a disputed visit to the property by the receiver’s agent in February 2018. The agent’s report said he changed a lock and gave keys to a guest staying at the house. The defendant alleged that the agent threatened and intimidated the guest and lacked authority to interfere with the property. The judge said there was no clear evidence that the defendant had obstructed or interfered with management of the Muckross property. Earlier evidence of conflict at a separate Limerick property supported a reasonable apprehension of possible interference, but did not establish that it had occurred in Muckross.
The judge also noted the lack of evidence about the property’s value, income, management charges, current loan balance attributable to it, or the receiver’s plans for it while the case continued. He said those gaps prevented him from concluding that damages would be inadequate.
The defendant had brought three motions seeking, among other relief, to join Allied Irish Banks plc and AIB Mortgage Bank, have the action dismissed, and obtain discovery. The judge refused those motions, finding no basis to join the banks, that the action was not bound to fail, and that early discovery was not justified. The underlying proceedings for permanent injunctions remained unresolved by this interlocutory ruling.