The Court of Appeal has allowed Jane Gleeson’s appeal against an interim order requiring the surrender of a Blackrock property, finding that the lenders had not shown a strong enough case to justify the mandatory relief at this stage.
The judgment, delivered by Ms Justice Ní Raifeartaigh on 8 June 2022, concerns 96 Avoca Park, Blackrock. The High Court had ordered Jane Gleeson and Paul White, along with other people in occupation, to give vacant possession to Everyday Finance DAC and two receivers pending the outcome of plenary proceedings. The order also required the delivery of keys and access devices, and stayed the sale of the property pending the proceedings.
The Court of Appeal held that the possession order was mandatory in substance, even though a sale was stayed and the plaintiffs had undertaken not to sell before the proceedings were determined. The plaintiffs therefore had to meet the higher “strong case” threshold for an interlocutory injunction, rather than the lower “fair issue to be tried” test.
The court accepted that Everyday Finance had a strong case that it owned the registered charge over the property. But it treated that as separate from whether the charge continued to bind Gleeson’s interest in the property after a 2008 loan made to White alone. The 1998 mortgage allowed for future loans or refinancing, but whether Gleeson’s written agreement was required remained disputed. The court said there was no document clearly recording her consent to the 2008 loan, and considered the family home declaration, on its face, to concern a different property.
The court also identified an error in the schedule to the receivers’ instrument of appointment: it gave the mortgage date as 12 August 1988, although the correct date appeared in the instrument’s recital and the property address and folio were correctly listed. The court considered whether the recital cured the error to be debatable. It found the lenders had shown a fair issue to be tried on that point, but had reservations about calling their case strong.
On the mortgage issue, the court likewise found a fair issue to be tried, but was not convinced the lenders had a strong case that Gleeson remained bound by it. It noted that the appeal concerned an interlocutory injunction within ongoing plenary proceedings, not a final determination of the parties’ rights.
The court allowed the appeal because the plaintiffs had not met the strong-case threshold overall. It therefore did not need to decide the balance of convenience. It observed that, by the appeal hearing, the property was vacant and generating no rent, and said those circumstances would have weighed in favour of discharging the injunction if that issue had needed decision. The court’s conclusion does not determine the underlying mortgage and receiver disputes.
The court’s provisional view was that Gleeson should receive the costs of the appeal. The plaintiffs had 14 days to seek a hearing on costs; absent such an application, an order in the proposed terms would be made.