The High Court has awarded Ken Fennell the costs of an interlocutory injunction against Brian Reilly and Irene Reilly, while staying execution of the costs order until the underlying proceedings are determined.
Ms Justice Butler delivered the ruling on 6 February 2024. The injunction had been granted in October 2023 in proceedings seeking possession of secured property and orders to restrain interference with a receivership. The defendants’ defence argues, among other matters, that the transfer of their loan and the plaintiff’s appointment as receiver were invalid.
The costs application concerned the injunction, which restrained the defendants, their servants or agents from interfering with the receivership and trespassing on the property. The judge said the plaintiff’s affidavit evidence described ongoing non-cooperation, including that the defendants had retaken possession after the receiver took control, installed tenants and diverted rent from the receiver. It also alleged that, through an agent, they intimidated, threatened and harassed tenants who cooperated with the receiver, and made an implicit death threat against the plaintiff’s property manager.
Justice Butler noted that the defendants did not dispute this affidavit evidence or offer an undertaking to stop the conduct or cooperate with the receiver. Their main submission was that the proceedings had not concluded and they might yet succeed at trial, including on issues that could not be established at the interlocutory stage.
The judge held that the question was whether it was reasonable to oppose the injunction on the evidence presented, rather than whether the defendants might ultimately succeed in the wider case. She found it was not appropriate to oppose the application without contradicting the plaintiff’s evidence or adducing relevant evidence. She concluded that it was possible to adjudicate justly on costs at this stage and awarded the plaintiff the costs of the injunction.
The court accepted the defendants’ request to stay execution of the costs order until the proceedings are determined, as the plaintiff had not actively opposed a stay. The plaintiff was given liberty to apply to the High Court about the stay at any time, on usual notice to the defendants. The ruling determines costs of the interlocutory application; the underlying proceedings remain unresolved in this judgment.