The High Court has ruled that Shane McCarthy was validly appointed receiver over two properties in Rush, Co Dublin, and Dromod, Co Leitrim, despite appointment deeds describing him only as “Receiver”.
Mr Justice Allen found that the deeds, read with the mortgage charges they relied on, appointed McCarthy as receiver and manager and gave him the powers of both. The omission of the words “and manager” was not fatal, he said. The ruling followed a trial in May 2019 of an action brought by McCarthy against Gregory Langan, David Langan and Ben Gilroy.
McCarthy had sought injunctions restraining Langan and Gilroy from impeding efforts to sell the properties, over which he said he had been appointed receiver. The defendants disputed the validity of the charges and his appointment. The court heard that the loans were in default and that ACC Bank had demanded repayment in February 2014. The evidence about the loans, charges, default and demands was unchallenged.
The judge also accepted evidence that ACC Loan Management Limited’s seal was properly affixed to the appointment deeds by a solicitor authorised under a board resolution. He rejected the defendants’ arguments that the appointments were invalid because no property schedule was attached or because the authorisation had not been registered with the Companies Registration Office.
Evidence at trial was that the loans and security were later transferred to Coöperatieve Rabobank U.A., McCarthy’s appointment was novated, and the properties were sold by the bank as mortgagee in possession. The judge said the validity of those later transactions was not before the court: they occurred after the pleadings closed, and the court could not determine their validity without notice to the parties involved.
The judge said the only substantive issue before him was whether McCarthy’s appointments were valid. He concluded that they were. He also noted there was no evidence of loss to the defendants and that McCarthy had no further interest in the properties. The court did not specify final orders in the judgment; Allen J said he would hear the parties about what orders should be made.