The High Court has set out its reasons for an interlocutory injunction regulating the relationship between a bank-appointed receiver and the owners of four properties. The orders were made on 30 March 2012 and will continue until the substantive proceedings are determined or the court makes a further order.
The properties are commercial premises on Metges Lane, Watergate Street, Navan, and three Dublin properties: apartments in Emmet Court and Parnell Street, and a house at Ashmount, Clonsilla. Fergus Lowe was appointed receiver by Danske Bank A/S after the bank demanded repayment under its securities. The judgment says Gerard Burns owned the Navan property; he and Anne Burns jointly owned the Dublin properties.
The receiver sought orders restraining the defendants from interfering with his work, harassing or intimidating occupants, and entering the properties without his express consent. The court had already granted those orders after hearing the application and noting the receiver’s undertaking as to damages. The judgment delivered on 17 April gives reasons for that decision; it does not determine the substantive proceedings.
The court found that the bank held valid securities and that its power to appoint the receiver was exercisable. It said Burns did not challenge the bank’s entitlement to make the appointment. The receiver’s evidence described repeated changes to locks at the Navan premises after he took possession, disruption to the receipt of rent, and conduct affecting tenants. The judge accepted hearsay evidence supported by documents from third parties. She was satisfied that Burns and associates had interfered with the receiver’s activities and that a ground-floor tenant had been harassed, whether or not that was intentional. An email also contained undisputed evidence that Burns had intimidated at least one tenant of a Dublin property.
Burns disputed the harassment evidence at the hearing and argued, among other things, that the receiver owed him a duty of care and that he had dismissed the receiver. The court said a mortgagor could not dismiss or instruct the receiver under the arrangements at issue. It found Burns’s response to the application misconceived, and said he had produced no evidence or argument showing an entitlement to remove the receiver from possession or rent collection.
Applying the interlocutory injunction tests, the judge found a fair issue to be tried over the receiver’s right to possession and rents pending the substantive case. She considered damages inadequate protection for the receiver if the injunction were refused, while the undertaking as to damages could compensate the defendants if the orders later proved unwarranted. The court also weighed the tenants’ position and the evidence of harassment and intimidation. It therefore continued the injunction until the substantive proceedings are determined or further order.