The High Court granted interlocutory injunctions requiring a defendant to give up possession of lands in Naas, County Kildare, pending the full hearing of proceedings brought by a receiver.
In an ex tempore judgment delivered on 28 July 2017, Mr Justice Twomey said the receiver had established a fair issue to be tried that he was entitled to possession. The court also found that damages would not be an adequate remedy and that the balance of convenience favoured granting the injunctions sought in the notice of motion.
The proceedings arose from borrowings the defendant obtained from Bank of Scotland (Ireland) Limited. The judgment said the loan book was later assigned through Carval Investors UK Limited to Pentire Property Finance Limited. The amount allegedly owed was approximately €2 million. The defendant did not dispute borrowing the money or failing to repay it.
The lands had been mortgaged as security for the borrowings. Tom Kavanagh, acting as receiver, was appointed by Bank of Scotland plc. The appointment was later novated to Pentire Property Finance. The receiver brought plenary proceedings seeking, among other relief, possession of the lands, and applied for interlocutory injunctions pending the action’s full hearing.
The defendant challenged the receiver’s entitlement, including the proof of the chain of title and technical objections to documents and affidavits. He had also initially claimed the lands were held in an “irrevocable private contract trust”, but the judgment said that argument appeared to have been abandoned.
The court said evidence had been produced about the lending and mortgage documents, the merger and subsequent transfers, the receiver’s appointment, and Pentire Property Finance’s registration in the Land Registry as owner of the charge. The judge said that registration was conclusive evidence of title under section 31 of the Registration of Title Act 1964 in the absence of fraud; the defendant had made no allegation of fraud.
On the adequacy of damages, the judge noted there was no evidence the defendant could repay the debt and that the evidence pointed the other way. The judgment also recorded that he had not made a settlement offer despite indicating he would. The court said the debt was likely to increase before trial and relied on Lowe v Burns [2012] IEHC 162 in concluding that the balance of convenience supported the interim relief.
The ruling concerns interlocutory relief pending determination of the substantive proceedings; it does not decide the full action.