The High Court has found a fair case to be tried over who is entitled to rent from units at Ossory Industrial Estate in Dublin 3, and said the balance of convenience favoured preserving the rent pending trial.
In an interlocutory judgment delivered on 7 October 2022, Ms Justice Stack said Ossory Road Enterprise Park Limited had raised a fair question about its title to the premises and whether a 21-year lease claimed by Rogers Recycling Limited was binding on it. She also found a fair issue to be tried over whether the company had occupied the premises under that lease and whether some occupiers were instead tenants of Declan Rogers.
The court did not finally decide the title or lease disputes. Nor did it make a final order on the company’s rent collection at this stage. The judge said she would hear the parties on the precise order and directions needed to bring the proceedings to trial as soon as reasonably possible.
The plaintiff says it bought the premises from Everyday Finance DAC, successor to the mortgagee bank, and is entitled to the rents. Rogers Recycling says it holds a lease from Mr Rogers, who had mortgaged the premises to Allied Irish Banks. The plaintiff argued that the lease was invalid against it because the mortgage required the bank’s prior written consent. The company relied on the bank’s knowledge of its occupation and the lease. The judge said the evidence raised a fair question about whether written consent had been given; awareness alone would not establish consent.
There was also uncertainty about the lease’s rent. The document stated annual rent of €24,000, while a handwritten alteration referred to €300 a week from January 2014. A bank email listed annual rent of €14,400. The judge said the evidence left significant uncertainty about the amount reserved.
The court considered the risk that rent might not be available if the plaintiff succeeded at trial. It noted the company had not provided evidence of its financial standing and that some rents had allegedly been paid in cash or lodged to Mr Rogers’s account. The judge made no finding on whether that had occurred, but said the rent could be retained by the plaintiff’s solicitors and accounted for if the company ultimately established a valid lease over Unit 1.
An earlier order of 8 April 2022 had restrained Mr Rogers from collecting rent from specified units and required the plaintiff to collect and lodge it with its solicitors. The later judgment addressed the company’s position after it was joined as a defendant by consent in May. The judge’s 7 October judgment concluded that rent collection by the plaintiff, with the funds held pending trial, was favoured; the precise order remained to be settled.