The High Court granted a receiver interlocutory injunctions concerning a holiday home in Baltimore, County Cork, after finding a serious issue to be tried over his rights to the property and the defendants’ alleged trespass.
The receiver, appointed under a mortgage, had found a buyer and said he needed to proceed with the sale. The defendants, Eric Geary and Anita Geary, did not deny that they had recently changed the locks. They had earlier given the receiver keys to facilitate a sale, and the receiver had allowed them to use the property during the winter before it was to be put on the market in spring 2013.
After the receiver asked for the contents to be removed by 17 July 2013, they remained in the property. The defendants disputed the receiver’s rights, arguing that the 2007 mortgage deed had not been executed by them and that the folios identified for the charge did not cover the holiday home. They also believed they could obtain a better sale price, but presented no evidence of efforts to sell or investigate the market.
Mr Justice Colm Mac Eochaidh rejected the argument that the mortgage was unexecuted. He said the defendants’ signatures on a supplemental indenture, which confirmed and ratified the mortgage, established its execution for the purposes of the Statute of Frauds. He also accepted, for the interlocutory application, the receiver’s account tracing the property’s folio numbers and linking the charge to the holiday home. The judge said the receiver had shown a serious issue to be tried; he did not finally determine the parties’ rights.
The judge found damages would not adequately remedy the receiver if an injunction were refused, including because the evidence showed the defendants were in a poor financial position. By contrast, if the defendants later succeeded and could prove they would have obtained a better price, the receiver’s undertaking as to damages could compensate them for the difference. The absence of evidence supporting their claim about a better price also weighed in the balance of convenience.
The court granted the injunctions in the terms sought in paragraphs 1 to 5 of the notice of motion. The judgment does not set out those terms, and it does not resolve the underlying action.