The High Court has refused a receiver’s motion for orders restraining Harry and Ursula Hilliard from interfering with his functions, saying key documents and questions about his authority remained unclear. The court invited the parties to make submissions on a timetable for an expedited hearing and on any further orders, including costs.
Tom Kavanagh brought plenary proceedings in April 2017 after his appointment as receiver by Havbell Limited. He sought orders concerning three properties in Leixlip, Crumlin and Palmerstown, along with damages for trespass and lost rental income. The motion for interim relief was issued the same day as the summons.
In a judgment delivered on 14 November 2019, Ms Justice Pilkington said the application had not established the receiver’s entitlement to proceed in relation to the properties. The court noted that the mortgage conditions relied on for the appointment had not been exhibited by the plaintiff, and that some mortgages referred to in the appointment instrument were also missing from the evidence. The plaintiff would need to clarify which documents formed the basis of the appointment.
The judge also identified an unresolved question about who authorised the appointment instrument. It was executed on behalf of Havbell Limited, while an affidavit relied on authorisation by Havbell DAC. The evidence before the court did not establish when the company changed from one form to the other or clarify which entity had authorised the signatory.
The Palmerstown property was jointly owned in undivided quarter shares by the Hilliards and notice parties Dermot and Mary Duffy. The documents included a €250,000 mortgage executed by the Hilliards and a separate mortgage in identical terms executed by the Duffys on the same day, despite evidence that only one €250,000 loan facility had been advanced. The judgment said the legal implications of those documents, and an assertion that the Duffys owed money, required clarification. Kavanagh’s lawyers had said no orders were sought against the Duffys.
The court did not decide the underlying dispute or determine the receiver’s ultimate entitlement. It refused the notice of motion for interim or interlocutory relief, finding that the extensive affidavits had not resolved material issues and that the plenary process could help clarify them. The judge said the parties could address a timetable for an expedited hearing and any subsequent orders, including costs.