The High Court has granted interlocutory orders sought by a receiver and a lender over a property in Clondalkin, finding they had established a strong case that they were likely to succeed at trial. The orders include possession-related relief and restrictions on Thomas Markham, but the judge said the proceedings must still be advanced to trial.
Mr Justice Dignam delivered the judgment on 12 April 2024. The application concerned a property at 12 Woodford View, Clondalkin, Dublin 22, occupied by persons who were not identified in the judgment. They did not appear, although the judge was satisfied they had been served. Markham opposed the application.
The plaintiffs’ evidence was that Markham took a €260,000 loan from First Active, secured by a mortgage over the property, and that the loan and security were later transferred to Promontoria (Finn) Limited. After a 2018 demand for repayment, Promontoria appointed Tom O’Brien as receiver. The evidence was that the receiver took possession in 2020, but people later entered the property and Markham rented it to them. Markham did not specifically deny most of the plaintiffs’ account; he denied owing Promontoria a debt and raised objections including the redacted transfer schedule, access to original documents and the receiver’s authority.
The judge found the plaintiffs had established a strong case on the loan, mortgage, transfer, default and appointment of the receiver. He accepted that some affidavit evidence was hearsay, but said hearsay could be relied on in an interlocutory application and considered the evidence, including that Markham did not deny several central matters. He also found a strong case that Markham was not entitled under the mortgage to rent out the property after the receiver’s appointment.
The court concluded that the balance of justice favoured granting the requested relief. It also recognised that requiring the occupants to give up possession could adversely affect them. As no evidence had been filed on their behalf, the judge had no specific information about their circumstances. He said he would consider a stay of the orders affecting them if an application were made.
The judge granted the reliefs in the notice of motion. He stressed that an interlocutory injunction could not be used as a substitute for trial: the plaintiffs must prosecute the substantive proceedings, and Markham remains entitled to seek a determination and pursue a counterclaim. The court said it would give the parties an opportunity to propose trial directions, and would decide them if the parties disagreed.