The High Court granted receiver Ken Fennell injunctions allowing him to enter and take possession of 131 Tritonville Road, the home of Con and Pamela Creedon, and barring them from obstructing his work as receiver. The order also requires them to provide access devices and information and to deliver records relating to the property, including leases and licences.
The dispute arose from a €4.51 million commercial loan advanced by EBS in 2004 to fund the purchase and development of properties on Tritonville Road. The properties, including 131 Tritonville Road, secured the loan under a mortgage dated 9 August 2004. The Creedons moved into No. 131 in 2008, four years after the loan and mortgage were made.
After the loan went unpaid, EBS obtained judgment against the Creedons for €4,837,002.46 in July 2014, with execution initially stayed. Fennell was appointed receiver over the family-home portion of the security in January 2015. He then sought court orders after the defendants did not agree to a proposed caretaker arrangement and disputed his authority to act; the challenge to his appointment was not pursued at the hearing.
The defendants argued that they could not be made to give up their home without a final possession order following formal proceedings. They also said the lender had to comply with the Mortgage Arrears Resolution Process (MARP) under the Code of Conduct on Mortgage Arrears. Fennell argued that the mortgage gave EBS the right to appoint a receiver after default and that the Code did not prevent the receiver from exercising those contractual powers.
Justice Murphy found that the loan was commercial and that the 2004 mortgage governed the parties’ rights. She said the property becoming the defendants’ home later did not change the contract. The judge was not persuaded that the Code applied to the loan as originally made, but considered the case on the assumption that it did. She concluded that the Code did not require every unresolved MARP process to be followed by formal court possession proceedings, and noted that the moratorium period had been observed.
The court held that EBS was entitled under the mortgage to appoint Fennell as receiver and that he was entitled to the relief sought. The judgment grants the specified injunctions and orders concerning possession, access devices and property records. It does not determine any separate damages claim or set out a further order about costs in the supplied judgment text.