The Court of Appeal has dismissed Peter Barry’s appeal against a High Court decision to refuse a further adjournment of an application concerning €154,000.25 in fire insurance proceeds. The appeal was confined to the refusal to adjourn; the original order appointing a receiver was not appealed directly.
The High Court had confirmed an order appointing Killian O’Reilly of Fieldfisher Solicitors as receiver by way of equitable execution over the remaining Zurich Insurance proceeds, to satisfy Start Mortgages DAC’s judgment debt. The Court of Appeal said that, following the unsuccessful appeal, Fieldfisher was released from an undertaking to retain the funds and could release them in accordance with Start Mortgages’ instructions. The appeal judgment did not itself specify the amount of the judgment debt.
The dispute arose from a 2007 mortgage loan of €265,500 secured on a property in County Waterford. The property was destroyed by fire in 2008. Zurich agreed to settle the insurance claim for €222,642.32. It paid a first tranche of €85,000 in 2009 by cheque in the joint names of Barry and Start Mortgages, though the judgment noted later correspondence suggested the payment may have been €91,000. Start Mortgages did not see the cheque. Barry’s former solicitor later sent the lender €30,000 from the insurance funds to cover mortgage arrears. The judgment said the remaining first-tranche funds had been dissipated and that no reconstruction work was undertaken.
Start Mortgages obtained a default judgment in 2012 for €225,785.53 plus costs. A receiver later sold the property, with €33,970.49 credited to Barry’s account. In 2021, Barry began separate specific-performance proceedings against Zurich seeking payment of the remaining insurance balance to him. Zurich took a neutral position in the receivership application and said it would comply with the court’s order.
The initial receiver order was made ex parte in June 2022, with a later hearing arranged to allow Barry’s solicitors to object or seek to set it aside. After one adjournment, Barry’s counsel sought another on 27 July, saying an in-person prison consultation and affidavit were needed. His solicitor cited court commitments and a family bereavement. The Court of Appeal said the affidavit did not explain efforts to contact Barry or identify any factual or legal basis to challenge the receiver order.
The appeal court held that refusing an adjournment may be overturned where it causes significant unfairness, but found none here. It concluded Barry had not demonstrated real prejudice, while further delay would cause the lender some cost and inconvenience. The court dismissed the appeal and proposed that Start Mortgages receive its appeal costs, subject to either party applying within 10 days for a different order.