The High Court has refused an application to lift notices registered against two properties while a dispute over a receiver’s appointment remains before the court.
In a judgment delivered on 29 July 2022, Ms Justice Butler ruled that the lis pendens registered by Carol Fay and Anthony Fay could remain in place. The notices relate to investment properties in County Leitrim and Dublin, mortgaged as security for loans from Ulster Bank. The Fays’ proceedings challenge the appointment of Tom O’Brien as receiver by Promontoria (Oyster) DAC.
The Fays allege that the appointment was invalid, in part because the documents confirming acceptance were signed by Simon Coyle rather than O’Brien. They also claim that the receiver’s actions amounted to trespass and seek damages. Those claims have not been determined. The defendants had not filed a defence when the application was heard.
Justice Butler rejected the argument that the proceedings could not support a lis pendens because they did not claim an estate or interest in land. She reasoned that if the receiver’s appointment were invalid, he might lack authority to sell the properties. A sale could deprive the Fays of their title, and the outcome of the proceedings could affect whether a buyer would obtain good title. The court therefore concluded that the notices were validly registered under the Land and Conveyancing Law Reform Act 2009.
The receiver also argued that the Fays had unreasonably delayed prosecuting their case. They issued proceedings and registered the notices in May 2018, but their statement of claim was not filed until December that year. The defendants then failed to file a defence. About three years passed before the Fays moved for judgment in default of defence.
The judge said the Fays had a special obligation to progress proceedings promptly once they registered a lis pendens. Their explanations, including a professional complaint and settlement correspondence, did not prevent them from taking further steps. But she was reluctant to characterise their inaction as unreasonable in the circumstances, including because the defendants were responsible for the next procedural step and had not explained their failure to take it. She also said that, even if the delay had been unreasonable, she would have refused to lift the notices in the exercise of her discretion, given the defendants’ own three-year default.
The application to vacate the lis pendens was refused. The judgment concerned only whether the notices should be lifted; it did not decide the underlying allegations or determine the Fays’ claims for damages.