The Court of Appeal has dismissed an appeal by Denis Slevin, Danny McMenamin and Siobhan Gallagher against interim orders supporting receiver Ken Fennell’s efforts to take possession of two residential investment properties in Donegal and collect their income. The ruling leaves those interlocutory orders in place pending trial; it does not determine the underlying proceedings at a full hearing.
The orders, first made by the High Court, restrain the defendants from obstructing Fennell’s access to or securing the properties, collecting rent, or attending at them. They also require the defendants to hand over keys, security devices and property records. The High Court set separate stays of execution for occupants in place at the time, through 30 September 2021 for one property and 31 May 2021 for the other.
Fennell was appointed receiver by Promontoria (Finn) Limited (PFL), which had acquired interests in the loans and mortgages from Ulster Bank. The defendants challenged the appointments and the evidence supporting the application, arguing, among other things, that PFL had assigned its interest to US Bank Trustees Limited, that transfer documents were inadmissible over stamp duty issues, and that the receiver relied excessively on hearsay. They also alleged fraud in PFL’s registration as owner of the charges.
Writing for the Court of Appeal, Mr Justice Edwards said the Form C1 relied on by the defendants recorded details of a debenture but was not itself the debenture. Neither the debenture nor the related facility agreement was before the courts, so the documents did not establish that the defendants’ loans were among the assets assigned. The register therefore remained conclusive evidence of PFL’s interest for these proceedings. The court said the defendants had not proved actual fraud or obtained an order to rectify the register.
The court also rejected the stamp duty challenge. It held that the loan transfer was a debt factoring agreement not chargeable with stamp duty and that the 2012 regulations did not require a stamp certificate for these instruments. It found no error in the High Court’s discretionary admission of some hearsay evidence on an interlocutory application.
The Court of Appeal dismissed the appeal in full. It proposed that Fennell receive his costs, subject to either party notifying the court within 21 days if they sought a different costs order. The High Court proceedings remain pending.