Judgment: 2022-11-04 · Court archive

High Court bars sale of two properties pending borrowers’ case against lender

The court granted an interlocutory injunction over properties in Stillorgan and Fermoy while proceedings continue, finding fair issues about prior demands and the receiver’s agency arrangement. It did not decide those issues at trial.

High Court · [2022] IEHC 612

Who, what, where, when and why

Who
  • Everyday Finance DAC
  • David O’Connor (Defendant)
  • Eileen Roberts (Judge)
What

The court granted an interlocutory injunction over properties in Stillorgan and Fermoy while proceedings continue, finding fair issues about prior demands and the receiver’s agency arrangement. It did not decide those issues at trial.

Where

Places mentioned in the report

  • 99 Stillorgan Road, Co Dublin
  • 95 Ballyhooley Road
  • Stillorgan
  • Fermoy
  • Co Dublin
  • Co Cork
When

Judgment:

Other dates in the report
  • 12 March 2020

    The judge rejected, for purposes of the injunction application, the borrowers’ argument that the receiver’s appointment was invalid because the loan transfer may have preceded it. Clarified documents showed AIB appointed the receiver on 12 March 2020, before transferring the loans on 13 March and novating the appointment that day. She also found no fair issue on the claim that one property attracted housing-loan protections: the borrowers had not provided evidence to support that argument, and their pleaded case described the properties as investments.

Why

Reasons reported in the judgment

Justice Roberts found a fair issue to be tried on whether AIB’s 2015 demands remained effective after the borrowers accepted Heads of Terms, and on whether O’Connor had been appointed as Everyday Finance’s agent to market the properties. She said the defendants had confirmed an oral agency appointment but provided no details of its timing or terms. The court did not finally resolve either issue.

The High Court has restrained the sale of two properties in Stillorgan and Fermoy while borrowers’ proceedings against Everyday Finance DAC and receiver David O’Connor continue.

In a judgment delivered on 4 November 2022, Ms Justice Eileen Roberts granted the borrowers’ application for an interlocutory injunction. The order applies to 99 Stillorgan Road, Co Dublin, and 95 Ballyhooley Road, Fermoy, Co Cork. It remains in place pending determination of the proceedings; the court did not finally decide the parties’ disputed legal and factual issues.

The plaintiffs, a married couple, had bought 10 buy-to-let properties using loans from AIB, secured by mortgages. They accepted they had defaulted and remained in default. The defendants said about €1.3 million remained owing after eight of the properties had been sold. The plaintiffs argued that the remaining properties should realise about €900,000 if properly marketed and that earlier sales had been made below market value. Those valuation and sale complaints were the plaintiffs’ claims, not findings by the court.

Justice Roberts found a fair issue to be tried on whether AIB’s 2015 demands remained effective after the borrowers accepted Heads of Terms, and on whether O’Connor had been appointed as Everyday Finance’s agent to market the properties. She said the defendants had confirmed an oral agency appointment but provided no details of its timing or terms. The court did not finally resolve either issue.

The judge rejected, for purposes of the injunction application, the borrowers’ argument that the receiver’s appointment was invalid because the loan transfer may have preceded it. Clarified documents showed AIB appointed the receiver on 12 March 2020, before transferring the loans on 13 March and novating the appointment that day. She also found no fair issue on the claim that one property attracted housing-loan protections: the borrowers had not provided evidence to support that argument, and their pleaded case described the properties as investments.

In weighing the competing risks, the judge noted that delaying sale could defer proceeds and incur interest and maintenance costs, while rental income would continue and additional costs could be claimed. She also considered the risk that selling the last two properties could make it harder to pursue the parties’ dispute over any shortfall. The balance was finely poised, but she concluded an injunction minimised the overall risk of injustice and kept the issues for trial together.

The court also directed that the borrowers receive redacted copies of conveyances for the properties already sold. It made no further order on other requested material, which had been provided or was said not to exist. Costs and further directions were left for later consideration, with the matter listed for mention on 16 November.

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