Judgment: 2020-03-26 · Court archive

Court of Appeal dismisses landlords’ challenge to receiver orders

The appeal concerned interlocutory orders allowing a receiver to manage four Cork properties while the underlying proceedings continued. The court left the High Court orders in place, while reserving the bank-name dispute for trial.

Court of Appeal · [2020] IECA 75

Who, what, where, when and why

Who
  • Ned Murphy (Plaintiff)
  • Paddy McKeown
  • Adelaide McCarthy (Defendant)
What

The appeal concerned interlocutory orders allowing a receiver to manage four Cork properties while the underlying proceedings continued. The court left the High Court orders in place, while reserving the bank-name dispute for trial.

Where

Places mentioned in the report

  • Cork
When

Judgment:

Other dates in the report
  • 15 November 2017

    The Court of Appeal has dismissed an appeal by landlords Paddy McKeown and Adelaide McCarthy against orders allowing receiver Ned Murphy to carry out his functions over four Cork properties. The court affirmed the High Court orders of 15 November 2017, which restrained the defendants from interfering with the receivership and refused their application to prevent disposal of the properties.

Why

Reasons reported in the judgment

The court held that whether the omission was deliberate or inadvertent must be resolved at trial. It said the bank’s account—that the comma was omitted without anyone adverting to its presence or absence—was arguable. If established, the legal argument for construing the document to correct the error was “overwhelming”, the judgment said. The court also noted a possible estoppel issue, but did not determine it.

The Court of Appeal has dismissed an appeal by landlords Paddy McKeown and Adelaide McCarthy against orders allowing receiver Ned Murphy to carry out his functions over four Cork properties. The court affirmed the High Court orders of 15 November 2017, which restrained the defendants from interfering with the receivership and refused their application to prevent disposal of the properties.

The appeal concerned interim relief, not a final determination of the parties’ claims. The underlying proceedings seek possession of the properties, delivery of keys and records, accounts of rents and other relief. The defendants’ defence and counterclaim dispute, among other matters, the receiver’s appointment and the bank’s identity. Those claims were not decided by this appeal.

The Court of Appeal said one aspect of the defendants’ case was remotely arguable: whether the receiver’s appointment was valid given the difference between the bank name appearing in the appointment documents and the name on mortgage documents. The defendants argued that the missing comma referred to a different entity. The bank said the omission was inadvertent and did not identify a separate company.

The court held that whether the omission was deliberate or inadvertent must be resolved at trial. It said the bank’s account—that the comma was omitted without anyone adverting to its presence or absence—was arguable. If established, the legal argument for construing the document to correct the error was “overwhelming”, the judgment said. The court also noted a possible estoppel issue, but did not determine it.

The defendants also challenged the conduct of the High Court hearing, the opportunity to obtain property valuations, the receiver’s use of the name “Ned Murphy”, and the alleged attempt to sell the properties. The appeal court rejected those grounds. It found the hearing fair, noted that the defendants had not sought more time or an order enabling a valuer to access the properties, and said there was no evidence before it that an undertaking not to dispose of an interest had been breached. It said the name challenge did not conceal the receiver’s identity.

In upholding the interim orders, the court pointed to the commercial nature of the properties, the judgment debt upheld on a separate appeal, and the defendants’ ability to pursue damages if successful at trial. The result allows the receiver to continue under the interlocutory orders; it does not decide the remaining issues in the underlying action.

Read the original court judgment

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