The Court of Appeal has dismissed most of Dominic Carney’s appeal against the dismissal of his High Court claims against receiver Gearoid Costelloe, but allowed a limited claim for the return of personal property to proceed.
In a judgment delivered on 24 October 2017, Ms Justice Finlay Geoghegan said Carney could pursue only a final claim concerning personal assets he had listed in an affidavit. The court did not decide that he owned those items. It also did not permit interim or interlocutory relief concerning them.
The dispute arose after Costelloe was appointed receiver over property owned by Philisview Properties Limited. Costelloe brought Circuit Court proceedings in March 2014 seeking orders to keep Carney and his sister out of the property. The Circuit Court made an interlocutory order in April 2014 and, on 19 May 2015, made a final order restraining Carney from entering or interfering with the property.
Carney had not filed a defence or counterclaim in the Circuit Court, although he made other applications and was given additional time to file a defence. While those proceedings were pending, he issued a separate High Court claim. He challenged the mortgage and Costelloe’s appointment, relied on alleged leases, claimed damages for alleged wrongful acts by the receiver, and sought the return of personal property said to belong to him and his sister.
The Court of Appeal did not need to decide whether the Circuit Court’s default judgment made the disputed issues strictly res judicata. It instead applied the rule in Henderson v Henderson, which can prevent a party from raising claims later if they could and should have been raised in earlier proceedings. The court said the rule required a fair assessment of the circumstances, rather than automatic application.
It concluded that Carney could and should have raised his challenges to the mortgage, the receiver’s appointment and the alleged leases as a defence in the Circuit Court. The same applied to his damages claim. Those claims could not proceed in the High Court.
The court treated the personal-property claim differently. It permitted Carney to pursue a final claim only for the assets identified in Exhibit E to his affidavit sworn on 24 June 2015, and only insofar as the claim sought to prevent their disposal. The judgment did not determine his entitlement to any item. The court said the precise terms of the replacement order remained to be settled.