The High Court directed the receiver of Ocean Point Development Company and certain assets of Francis Dooley to treat four purchaser deposits, totalling €152,900, as assets assigned to ACC Bank as security. The deposits related to a retail unit and an apartment at the Ocean Point development in Courtown Harbour, County Wexford. Sales of both units remained incomplete.
In a judgment delivered on 12 October 2012, Ms Justice Laffoy considered the receiver’s application for directions on the deposits held by solicitors and transferred to the receiver after his appointment on 5 March 2009. The purchasers were John Boyle, who had agreed to buy Unit 11, and Sean Roche and Michael Carroll, joint purchasers of Unit 17.
Two deposits for each unit were at issue: one under an agreement for sale of the site and another under a development or building agreement with the company. The court directed that Boyle’s €26,000 site deposit and Roche and Carroll’s €19,039.50 site deposit be treated as assets assigned to the bank under Dooley’s mortgage. It directed that Boyle’s €93,900 development deposit and Roche and Carroll’s €13,960.50 building deposit be treated as assigned in equity to the bank when the company debenture’s floating charge crystallised on the receiver’s appointment.
For Boyle’s site deposit, the court concluded that the mortgage covered rights and benefits accruing after it was created in relation to the property charged to the bank. The court also found the company’s development deposit was its money under the contract and was captured by the floating charge when the receiver was appointed.
The court did not determine whether Boyle was entitled to repayment under his contracts. It considered that question on the assumption that the deposit might have become repayable because planning permission required by the contract had not been obtained, but expressly made no finding on that point. Nor could it decide whether Roche and Carroll had been entitled to terminate their contracts and demand their deposits back.
The directions were limited to how the receiver should treat the deposits as security. The court did not decide whether the bank could retain the entire sums to meet the secured liabilities of Dooley and the company. It said that issue could not be resolved on the evidence or in the absence of Dooley and the company, and that the receiver must apply the money under the relevant contractual arrangements. The judgment noted that the purchasers might have redress under the Premier Guarantee scheme, but left that matter to them.