The High Court has dismissed Rosemary Crowley’s proceedings over two properties and refused her request to stay the dismissal pending an appeal. The court had not decided the underlying dispute about contracts for the properties; it concluded that Crowley had failed to establish that the proceedings were properly served within time.
In a ruling delivered on 30 July 2021, Mr Justice David Keane refused Crowley’s application to have service of the plenary summons on Kapstone Limited declared sufficient, or to obtain leave to renew the summons. He also refused her applications to join receiver Ken Fennell as a defendant and to restrain Kapstone or Fennell from selling either property to anyone other than Crowley.
The proceedings sought specific performance of agreements for the sale to Crowley of two adjacent properties owned by Kapstone and mortgaged to Promontoria (Arrow) Limited. Promontoria had appointed Fennell receiver of both properties. A service problem emerged after Crowley sought to join Fennell and obtain an injunction preventing a sale pending trial.
Crowley argued that Fennell should not receive costs because he was a non-party. The judge rejected that submission. He found Fennell had been a notice-party to the applications to join him and obtain an injunction, was entitled to defend them, and had succeeded in resisting them. The court ordered Crowley to pay Fennell’s reasonable costs of those two applications, including the cost of submissions if any, with the amount to be adjudicated if the parties could not agree. Fennell did not seek costs for the separate application concerning service and renewal of the summons.
The judge refused a stay because Crowley had not identified grounds for an arguable appeal against the finding on service. The ruling said that the question was whether service had been properly effected, not whether the contracts existed. The court did not determine whether the vendor had lawfully rescinded the contracts for failure to comply with completion notices.
The judge also considered that the balance of justice did not favour a stay. The receiver’s uncontroverted evidence indicated that both properties had already been sold, and Crowley’s counsel acknowledged she remained within time to bring fresh proceedings. The court therefore dismissed the proceedings and refused a stay pending appeal.