The High Court dismissed Moylist Construction Limited’s application for an interlocutory injunction over an 18-home holiday development at The Greens in Ballybunion, and struck out its claims against the receiver, his accountancy firm and Ulster Bank.
In a judgment delivered on 21 April 2010, Miss Justice Laffoy held that the receiver was entitled under the mortgage to take possession of the site, even if Moylist had rights against the developer under their building agreement. The ruling dealt with applications at an interlocutory stage and strike-out applications; it did not decide the builder’s separate claim for unpaid work against the developer, who was not before the court on these applications.
Moylist had contracted in July 2006 to build 18 holiday homes and carry out associated works for a contract price of €2.672 million. It said the works were unfinished and that its contractual licence allowed it to remain on site. The company had suspended work in December 2007 over outstanding payments. It separately sought payment from the developer, including €332,579.32 on a motion in summary proceedings.
Ulster Bank had demanded repayment of €3.637 million secured by a mortgage over the development. The developer appointed the first defendant as receiver and manager on 15 October 2009; the bank also appointed him as its agent under the mortgage. He took possession of the site that evening. The judgment records that Moylist had told the bank’s agents that subcontractors intended to enter and reclaim materials, and that Moylist later acknowledged it had “misrepresented” that position.
Moylist alleged trespass, waste and inducement of breach of contract, among other claims, and sought orders restoring possession and restricting interference with the site. The judge found that damages would be an adequate remedy and that the balance of convenience favoured allowing the receiver to perform his role. The injunction application was dismissed.
The court also struck out the claims against the receiver, finding that he had lawfully taken and remained in possession and could not be liable for the pleaded inducement of breach. The claims against Ulster Bank were struck out because it had no legal duty to ensure the developer fulfilled its contractual obligations to Moylist, and the building agreement’s guarantee-account provision did not apply. The accountancy firm was struck out as a defendant because the receiver, not the firm, had been appointed. The court made no order in these applications determining Moylist’s claim against the developer.