The High Court refused an application by two receivers and Pepper Finance Corporation (Ireland) DAC for interlocutory orders that would have enabled the sale of a farm and an investment house in County Westmeath before trial.
Mr Justice Allen said the application risked bringing the underlying dispute to an end before a full hearing. He found a “very real issue of substance” over whether the receivers were entitled to obtain possession of the properties for the purpose of selling them.
The receivers, Declan Taite and Anne O’Dwyer, were appointed in 2018 over three properties charged to ACC Bank: a farm at Slanemore, Mullingar, and houses at Ashfield, Mullingar, and Tour Commons, Ballynacargy. The Tour Commons house had been sold by the time the motion was heard. The dispute before the court principally concerned the farm, occupied and farmed by Matthew Molloy, and the unsold Ashfield house, said to be occupied by Nick Lozians.
The plaintiffs sought orders against Molloy and Lozians, including possession-related relief. They argued that the receivers were entitled to possession and that Pepper could sell as mortgagee in possession. They accepted that the receivers themselves had no power of sale over the farm or Ashfield. Molloy disputed the extent of the receivers’ powers and said his livelihood depended on the farm. Lozians did not appear.
Justice Allen said the charges appointed the receivers to collect income from the properties. The evidence, in his view, raised a question about whether they had instead been appointed to obtain possession so Pepper could sell. He said the Court of Appeal’s decision in *Vitgeson v O’Brien* did not establish that an income-only receiver could be used to obtain possession for a sale.
The judge also found the plaintiffs had not provided evidence of the properties’ values or enough information to assess why an early sale was needed. He said there was a strong case likely to succeed on the formal validity of the receivers’ appointment, but that did not resolve whether they had the powers required for the orders sought. As to Ashfield, he was not satisfied that the plaintiffs’ evidence properly established who was entitled to notice as an occupier.
The court refused the interlocutory application. It did not finally decide the disputed legal issues or determine the parties’ rights at trial. The case was listed for mention on 2 June 2022 to address costs.