The High Court has granted interlocutory relief to a lender and its receiver concerning a rental property in County Wexford, pending trial of the underlying proceedings.
Mr Justice Liam Kennedy’s judgment of 4 December 2023 concerned the Thatch, Askinvillar, Kiltealy. The orders were sought against the registered owner, Arthur O’Neill, who opposed the application. The court said it was deciding only the interim application, not the substantive claims or the dispute over repayment arrangements.
The plaintiffs, Promontoria (Finn) Limited and receiver Ken Fennell, sought injunctions to prevent the defendants or their representatives from obstructing steps to take possession. The court recorded that the lender held a registered charge and appointed the receiver in 2016. It was undisputed that no interest or capital payments had been made since 2012, with arrears dating back to 2007, and that O’Neill had refused to vacate or pay rent to the receiver.
O’Neill argued that the loans had originally been agreed on an interest-only basis for 25 years and that the lender repudiated that agreement in 2012 by saying the interest-only period lasted five years. The plaintiffs relied on signed 2007 loan offers which, they said, limited interest-only payments to the first 60 months. The judge found that their documents established a strong case for that five-year term, while noting that a factual dispute about a document relied on by O’Neill would need to be resolved at trial.
The judge said some issues, including the agreed repayment terms and the consequences of any unilateral variation, could only be resolved at trial. But the evidence at this stage did not establish an arguable case for repudiation. The court also found that the arrears predated the disputed 2012 communication and that O’Neill had made no payments on any basis for many years. It rejected his argument that the lenders’ separate proceedings over the Thatch were a reason to refuse interim relief, finding no prejudice from that decision.
The court declined to delay the application until discovery ordered in earlier proceedings had been provided. It described the non-compliance as unsatisfactory and said it expected the plaintiffs to remedy it urgently, but found it could not speculate about what the documents might show. The court said O’Neill could rely on any helpful discovery at trial.
Finding that the plaintiffs had shown a strong case and that the balance of convenience favoured relief, the court granted the orders sought in the notice of motion. It did not finally determine the claims, defences or repayment dispute. On costs, the judge said the plaintiffs appeared entitled to their costs, subject to either party making written submissions within 14 days seeking a different order.