The Court of Appeal has dismissed Philip Ward’s appeal against a High Court refusal to temporarily restrain the sale of agricultural land in County Monaghan that he had charged as security for his son’s debt to Tower Trade Finance (Ireland) Limited.
The appeal concerned only interlocutory relief: whether the sale should be halted while Ward’s plenary proceedings continued. The High Court refused the injunction on 12 March 2021. The Court of Appeal, in a judgment delivered by Mr Justice Noonan on 13 January 2022, dismissed the appeal, finding Ward had not raised a fair issue to be tried. It said there was no basis to interfere with the High Court’s exercise of discretion.
The land, a little over 12 acres, was charged under a settlement agreement involving Tower, Michael Ward and his father. Michael Ward consented to judgment for €132,032.40, with entry and execution stayed for 12 months if he paid €100,000 within that period. Philip Ward agreed to secure his son’s obligations with a charge over his land and signed a deed of charge, registered in April 2018. The court noted he had received independent legal advice before agreeing to the settlement.
Tower later appointed Aengus Burns receiver over the land. An auction arranged for December 2020 failed for lack of interest. A second auction was set for 25 February 2021. Ward’s injunction application was brought shortly before it. The Court of Appeal criticised the initial ex parte application for failing to disclose the earlier auction and Ward’s attempt to prevent it. The court said applicants seeking orders without notice must disclose all material facts. Because Ward and his solicitor later sought to correct the omission before the return date, the court took no further action on it.
The court also considered the delay in seeking relief and said the delay and non-disclosure weighed heavily against Ward. It rejected his reliance on a South African jurisdiction clause in the company’s trading agreement, explaining that the receiver’s rights to sell arose from the settlement agreement, not that trading agreement or Michael Ward’s guarantee. The court also rejected an argument based on family ownership of the land and a new submission concerning the receiver’s power of sale, which had not been raised in the High Court or appeal materials.
Although the February 2021 auction was unsuccessful, the receiver later contracted to sell the land to a third party on 29 April 2021; the contract remained to be completed and was subject to a completion notice at the time of the judgment. The Court of Appeal recorded that a later injunction application had also been refused. Its decision dismissed the appeal against the High Court’s interlocutory ruling; it did not determine the underlying plenary claims.