The High Court has allowed a receiver to collect rent from five residential investment properties pending trial, while refusing to grant her possession or prevent the owners from entering the properties.
In a judgment delivered on 8 December 2022, Ms Justice Eileen Roberts found that the owners had raised issues requiring a full hearing about whether the receiver had been validly appointed. The order permits rent collection and related steps needed for that purpose. It also requires the owners to provide records concerning leases, tenancies or other documents about third-party occupation.
The receiver, Siobhan O’Dwyer, was appointed by AIB Mortgage Bank in January 2016. The properties secure three loans taken out by Desmond and Mary Grogan between 2004 and 2006. The court recorded that the Grogans stopped making repayments in March 2014. The bank issued demands in April 2014, but the sums demanded were overstated at least for one loan, and the bank later refunded €202,427.01 following its tracker mortgage examination.
The Grogans disputed the appointment, arguing that the loans were not in arrears when the receiver was appointed and raising questions about interest overcharging and the meaning of the tracker rate in their agreements. The judge said there was no evidence establishing what the account balances would have been after correcting the interest calculations. Although it appeared likely that arrears existed by January 2016 after nearly two years without payments, the court made no final finding on that issue. It held that the relevant interest and default questions should be determined at trial.
The judge concluded that the receiver had shown a fair issue to be tried for prohibitory interim relief, but had not established the strong case required for an order effectively giving her possession. The court was also unwilling to make an order that could permit the properties to be sold before trial. It found that collecting and holding rents pending trial was a more limited measure, consistent with the approach described by the Supreme Court in *Charlton v Scriven*.
The court rejected the Grogans’ arguments that delay and the bank’s involvement in the tracker mortgage examination should prevent relief. It said the delay was explained by a pause in enforcement during the examination and found no demonstrated prejudice from the delay. The underlying proceedings are to be expedited. The court listed the case for mention on 20 December 2022 to settle the order’s terms, consider costs and address directions toward an early trial.