The High Court has ordered Orlington Company Company Limited by Guarantee to register Ossory Road Enterprise Park Limited as a member and remove Declan Rogers from its membership register, after finding the company had acquired the units Rogers previously owned at Ossory Industrial Estate, Dublin 3.
In a judgment delivered on 24 January 2023, Ms Justice Stack found that the applicant qualified as a “Unit-owner” under the management company’s articles and was entitled to membership. The court directed rectification of the register to record the applicant’s membership and remove Rogers. It did not decide the position of Brid Rogers, the third respondent, or the costs of the application; those matters were listed for a further hearing.
The dispute followed the applicant’s purchase of nine estate units from Everyday Finance Limited, which had acquired the loan and securities originally held by Allied Irish Banks. The sale completed in December 2021. The respondents argued, among other things, that the applicant had acquired only a leasehold interest and was not a unit owner, that it had not been registered as owner in the Land Registry, and that the conveyances were invalid because the applicant had not entered a maintenance covenant.
The judge rejected those objections for the purpose of deciding the membership application. She found that the conveyances gave the applicant the residue of a 10,000-year leasehold term and the beneficial interest in the freehold reversion, sufficient to make it the unit owner under the articles. She also said the long leasehold interest alone would qualify. The absence of Land Registry registration did not prevent the applicant from enforcing its membership right pending registration.
On the covenant issue, the judge found that the failure to include a direct covenant did not make the conveyances void. She noted that the applicant had offered to execute a deed of covenant, but the company and its directors had not agreed to it.
The judgment also addressed allegations in separate proceedings that the mortgagee’s sale process was improper and the units had been sold at an undervalue. The applicant had paid €1,252,000; another bidder, Robert Healy, had bid €1,413,000. The judge said the evidence did not establish impropriety, and that the usual remedy for improper exercise of a mortgagee’s power of sale would be damages against the mortgagee, rather than setting aside the purchaser’s conveyances. Separate proceedings seeking to set aside those conveyances remained undecided.
The judge said that if Rogers ultimately succeeded in setting aside the conveyances in those proceedings, the applicant would cease to be a member and Rogers would be restored to membership. For now, she found there was no legal basis to delay the applicant’s registration.