The Court of Appeal has dismissed Hugh Corrigan’s appeal against a High Court order confirming Ken Fennell’s appointment as receiver over two properties in Co. Wexford and granting him possession of them.
In a judgment delivered on 5 October 2021, Mr Justice Murray, with whom Ms Justice Whelan and Mr Justice Haughton agreed, held that the receiver’s appointment was valid under the terms of a 2007 mortgage. The court also upheld the High Court’s finding that purported leases over the properties did not bind the bank or receiver because the bank had not given the required prior written consent.
The dispute followed lending facilities initially agreed in 2006 to refinance existing loans. The bank demanded repayment of €2,831,345.20 in May 2014 and appointed Mr Fennell as receiver that July. The secured properties were a Londis supermarket and restaurant in Kilmuckridge and a supermarket, takeaway and two apartments in Oulart. At trial, the evidence was that about €2.5 million remained outstanding.
Mr Corrigan argued that the appointment was invalid because the appointment deed called Mr Fennell “Receiver”, while the mortgage authorised appointment of a “receiver and manager”. The court concluded that the deed and mortgage had to be read together: the mortgage defined “Receiver” as a receiver and manager, and the appointment deed gave Mr Fennell the mortgage’s powers, including management powers. The court rejected the argument that the deed had to use the exact words “receiver and manager”.
The court also rejected alternative arguments that the appointment should stand as a statutory appointment or as a delegation of the bank’s powers. It found the appointment deed expressly relied on the mortgage and there was no basis to conclude that the bank had invoked either alternative power.
The leases included agreements concerning the Oulart supermarket and takeaway, residential parts of the Oulart property, and the Kilmuckridge premises. The court found no basis to disturb the trial judge’s findings that written consent had neither been sought nor given. A 2018 order allowing rent payments for the Oulart premises did not create a landlord and tenant or proprietary interest. The court also found that the defendant had not established that the bank’s awareness of an earlier Oulart lease made it binding after that lease expired.
The court refused permission to introduce a new “Welsh mortgage” argument, saying it lacked supporting evidence and would require the bank or the current owner of the loan and security to participate. It held that a separate 2021 order in debt proceedings did not extinguish the underlying debt or prevent enforcement of the security. The court also rejected the appeal’s fair-procedure complaints and other grounds.
The appeal was dismissed. The court’s preliminary view was that Mr Corrigan should pay the plaintiff’s costs in both courts. He was given 14 days to notify the court office if he disagreed, in which case a costs hearing would be arranged.