UNAPPROVED
THE COURT OF APPEAL
Faherty J.
Pilkington J.
Butler J.
High Court Record No. 2022/5534P
Court of Appeal Record No: 2024/127
Neutral Citation Number [2025] IECA 135
BETWEEN/
TOM O'BRIEN AND PROMONTORIA (FINN) LIMITED
Plaintiffs/
Respondents
- AND-
THOMAS MARKHAM
-AND-
PERSONS UNKNOWN OCCUPYING THE PREMISES AT 12 WOODFORD VIEW, CLONDALKIN, DUBLIN 22
Defendants/
Appellant
-AND-
High Court Record No. 2022/153 MCA
Court of Appeal Record No: 2024/128
PROMONTORIA (FINN) LIMITED
Applicant/Respondent
-AND-
THOMAS MARKHAM
Respondent/Appellant
Judgment of Ms. Justice Faherty dated the 27th day of June 2025
1. This judgment concerns Mr. Markham's (hereafter "the appellant") appeal in the proceedings bearing record no. 2022/5534P ("the injunction proceedings") against the judgment ([2024] IEHC 202) and Order of the High Court (Dignam J.) requiring him to deliver up possession of the property known as 12 Woodford View, Clondalkin, Dublin 22 (hereafter "the Property"). This was one of two appeals brought by the appellant, the other being his appeal against the judgment and Order of Dignam J. in the proceedings entitled "Promontoria (Finn) Limited v. Thomas Markham" bearing record number 2022/153MCA ("the lis pendens proceedings"). Those proceedings were brought by Promontoria (Finn) Limited (hereafter "Promontoria") pursuant to s. 123(b)(ii) of the Land and Conveyancing Law Reform Act 2009 ("the 2009 Act") for an order vacating a lis pendens registered by the appellant on Folio DN65271F of the Register of Freeholders, County Dublin in which the Property is comprised. By Order dated 24 April 2024, Dignam J. ordered the lis pendens registered by the appellant on Folio DN65271F be vacated.
2. At the hearing of the appeals (at which the appellant appeared on his own behalf) the appellant withdrew his appeal against the Order made in the lis pendens proceedings. Hence, this judgment is concerned only with the appellant's appeal against the Order made on 24 April 2024 in the injunction proceedings save that the Court will address the costs of the lis pendens appeal at the conclusion of the judgment.
3. It should be noted that at the commencement of the appeal hearing the appellant sought an adjournment on the basis that he had not received the respondents' written legal submissions and also that he wished to file further affidavit evidence to exhibit a debenture which, he claimed, would impugn Promontoria's title. On investigation, it transpired that the appellant had received, but not opened, an email containing the respondents' written submissions which was sent to him approximately four weeks before the hearing date. A hard copy of the same submissions was sent by post a few days later to the address provided by the appellant in his affidavits. Following submissions from both sides, I delivered an ex tempore ruling in which the application for an adjournment was refused and, in consequence, the application to file a further affidavit was also refused.
The injunction proceedings
4. The background to the injunction proceedings is helpfully set out in the judgment of Dignam J. (hereafter "the Judge") and I gratefully adopt same.
5. Pursuant to a loan offer dated 17 November 2005, which was accepted by the appellant on 10 December 2005, First Active Plc ("First Active") advanced the appellant a loan facility of €260,000. The security for the loan was to be a mortgage over the Property. Ultimately, by a Deed of Mortgage dated 18 December 2006, the appellant charged the Property in favour of First Active as security for all sums which were then or might thereafter become due and owing by him to First Active.
6. On 15 February 2010, Ulster Bank Ireland Limited ("Ulster Bank") acquired all rights accruing to First Active on foot of any existing loan or security instruments pursuant to the terms of the Central Bank Act 1971 (Approval of Scheme of First Active Plc and Ulster Bank Ireland Limited) Order 2009 [S.I. 481/2009]. The mortgage was registered as a burden in favour of Ulster Bank on Folio DN65271F on 24 January 2011.
7. On 29 September 2015, pursuant to a Global Deed of Transfer between Ulster Bank and Promontoria, Ulster Bank conveyed, assigned, transferred and assured to Promontoria all of its right, title, interest, benefit and obligation in and under the loans and related security identified in the Schedule to the Global Deed of Transfer.
8. On 15 October 2015, Promontoria was registered as owner of the charge on Folio DN65271F.
9. On 5 November 2015, Capita Asset Services wrote the appellant on behalf of Promontoria to advise him that his loan facility and security with Ulster Bank had been transferred to Promontoria.
10. On 25 April 2018, the appellant having gone into default in relation to the loan facility, Promontoria wrote to him advising that the amount due and owing on foot of the facility was €359,652.11 and demanded repayment failing which its rights under the security would be exercised, including the appointment of a receiver.
11. By Instrument of Appointment dated 25 May 2018, Promontoria duly appointed the first named plaintiff (Mr. O'Brien) as receiver over the Property.
12. At the time Mr. O'Brien (hereafter "the Receiver") was appointed, the Property was being rented out by the appellant. At the Receiver's request the tenants vacated the Property and the Receiver's agents secured possession on 17 April 2020. The Property was then boarded up and put up for sale by online auction.
13. On 25 June 2020, the Receiver entered into a contract for sale in respect of the Property at a price of €231,000. The sale was due to close within four weeks of the contract for sale. Prior to completion, however, the purchaser's solicitors informed the Receiver of the existence of a pending application before the Property Registration Authority for the registration of a lis pendens. The appellant had in fact issued plenary proceedings on 15 July 2020 (bearing record no. 2020/5097P) and had on the same day filed a lis pendens in the Central Office and subsequently applied to the Property Registration Authority to have same registered as a burden on the Folio which was done on 22 July 2020.
14. On 25 September 2020, the solicitors for Promontoria and the Receiver wrote to the appellant indicating that they had authority to accept service of the proceedings, and they requested that a copy of same be served on them. No response was received to that letter. On 30 November 2020 the solicitors wrote again requesting that the appellant deliver the plenary summons within ten days. That did not happen. Rather, the appellant's response was a letter entitled "Notice of Demand" objecting to receipt of correspondence from the solicitors.
15. It would appear that at some point prior to 22 August 2022, "persons unknown" went into possession of the Property. Around the same time, it was brought to the Receiver's attention by his agents that a steel door they had installed on the Property had been removed. On 2 September 2022, the Receiver's agents changed all the locks but upon their return to the Property on 5 September the locks had been broken. An individual living there advised the agents that he had paid a deposit of €5,000 and was paying rent of €2,400 per month to the appellant.
16. The solicitors for the respondents wrote to the appellant on 16 September 2022 to request undertakings from him that he would deliver up vacant possession of the Property by 22 September, that he would not interfere with or impede the respondents' efforts to take possession, and that he would not hold himself out as having any entitlement to sell or rent the Property, failing which proceedings would issue. On the same day the respondents' agents wrote to the occupant(s) of the Property informing them of the appointment of the Receiver and the fact that a contract for the sale of the Property had been entered into and that the appellant did not have the right or entitlement to let or take possession of the Property and that any lease was therefore invalid and of no legal effect. Undertakings were sought that the occupants would vacate the Property, failing which proceedings would issue.
17. There then followed exchanges between the representative of a housing charity on behalf of the occupants and the respondents. On 19 September 2022 the representative wrote to the respondents' solicitors advising, inter alia, "... the occupier has been misled by Mr. Thomas Markham as to his ability to enter into an enforceable lease with the occupier" and that while the occupier (who had paid three months' rent upfront alongside a deposit) understood that they may have to leave the Property, they were requesting a temporary stay on any action to recover the Property.
18. On 22 September 2022, the respondents' solicitors received a letter from a party claiming to be the "occupant" of the Property which advised, inter alia, that they had received unsolicited correspondence from the respondents' solicitors and that having discussed the issue with the landlord they had been assured that he was the lawfully registered owner of the Property. The writer added that they had been advised that if the respondents had an eviction order the occupants would have no option but to vacate the Property. The "occupant" requested a copy of such order, if there was one.
19. This correspondence was raised by the respondents' solicitors with the representative of the housing charity who duly reverted to say that he had been in touch with the actual occupant who claimed not to have corresponded with the solicitors. The representative stated that he had asked the occupant to confirm this directly with the solicitors.
20. In the exchanges with the housing charity representative the identity of the occupant was not disclosed and the representative indicated that he did not have authority to release that identity.
21. The injunction proceedings commenced on 3 November 2022 whereby the respondents were seeking, inter alia, an order that the appellant and all persons having notice of the making of the order vacate and deliver up possession of the Property to the respondents. On 4 November 2022, the respondents filed a notice of motion seeking interlocutory injunctive relief. The application was grounded on affidavits sworn by the Receiver, and Mr. Donal O'Sullivan of Promontoria who deposed to the facts as outlined above. At para. 30 of Mr. O'Sullivan's affidavit it was averred that as of 6 October 2022, the appellant was indebted to Promontoria in the sum of €435,349.21 on foot of the loan facility and that no repayment had been made to the account since December 2016. A Statement of Account was exhibited to Mr. O'Sullivan's affidavit.
22. The appellant swore two replying affidavits. As the Judge observed at para. 37 of his judgment, the appellant did not directly engage in any meaningful way with the matters averred to by the Receiver and Mr. O'Sullivan. He did not specifically deny the loan offer, that he accepted it, that he drew it down, that he executed the mortgage, that he went into arrears, that a letter of demand was served on him, that the Receiver went into possession, that the appellant retook possession or that he rented out the Property to third parties after the Receiver took possession. He did, however, at para. 10 of his affidavit replying to Mr. O'Brien, reject the contents of Mr. O'Brien's affidavit insofar as Mr. O'Brien was relying on information from Promontoria, and he averred that Mr. O'Brien "is relying completely on the bona fides of the information provided to him by the Second Named Plaintiff which information is based completely on hearsay evidence as set out in the affidavit of Mr Donal O'Sullivan".
23. Again, as noted by the Judge, the appellant accepted in the same affidavit that he retook possession and rented the Property to third parties.
24. The only specific denial was the appellant's denial that he owed Promontoria a debt, albeit this was not expanded upon. As the Judge observed, the approach of the appellant in his affidavits was to put the respondents on proof of their claims.
25. The appellant deposed to a number of factual matters, including the sending of letters on 11 December 2018, 11 February 2019 and 22 February 2019 entitled "Notice of Demand", "Notice of Default" and "Second Notice of Default and Dishonour", respectively, in which he demanded proofs, inspection and receipt of true copies of "alleged unaltered un-defaced original wet inked signed" documents. As the Judge noted, despite having been sent in response to the letter of demand from Promontoria, the appellant's letters did not include "any sort of straightforward denial that a sum of money was owed to Promontoria on foot of the loan".
26. The appellant also averred that from the time of the Receiver's appointment he had no direct communication with him or his agents, he did not have sight of the Instrument of Appointment, and he was not aware of what he describes as "the activities" of the Receiver or his agents. This was disputed by the respondents. In an affidavit sworn on 14 December 2022, the respondents' solicitor, Mr. Vaughan, exhibited copies of correspondence between the Receiver's office and the appellant, including a letter wherein the Receiver informed the appellant of his appointment and requested details of various matters relating to the Property. Included in the exhibits in Mr. Vaughan's affidavit was an email of 18 July 2019 which appears to be from the appellant and addressed to the Receiver's office. Therein, the appellant stated that a representative of Link Asset had assured him that there would not be any eviction or repossession of the Property the following day or in the near future as "suggested by [the Receiver's] threatening letter of 10th july (sic) to the present tennants(sic)...". The Judge noted that the appellant did not deny receiving or sending these pieces of correspondence.
27. In his affidavit, the appellant also made the point that the Statement of Account was prepared by a third party, BCM Global, and he averred that there was "no historical information provided by the Second Named Plaintiff as to the voracity (sic) of the opening balance or how it came to total €338,703.07".
28. No affidavits were filed on behalf of the occupants of the Property and there was no appearance or submissions on their behalf in the court below.
The High Court judgment
29. The points of opposition in the appellant's affidavits were summarised by the Judge, as follows:
"45. In summary, the points of opposition in Mr. Markham's affidavits appear to be:
(i) The plaintiffs are on proof of all matters;
(ii) The plaintiffs' affidavits consist of hearsay, which, he says, is not evidence;
(iii) He does not owe a debt to Promontoria;
(iv) The plaintiffs have not proven that Promontoria had authority to appoint a receiver;
(v) He is entitled to inspect original documents under section 91 of the 2009 Act and that despite sending three letters (on the 11th December 2018, 12th February 2019 and the 22nd February 2019) he has not been provided with inspection or with true copies of the originals and that while Mr O'Sullivan exhibits documents, he does not say that the copies are true copies of the originals and they are not attested to be true copies of the originals.
(vi) The Schedule to the Global Deed of Transfer is heavily redacted;
(vii) He had no contact from or with the receiver;
(viii) The Statement of Account was provided by a third party and it does not provide the historic basis for the opening balance.
46. In addition to these points, Mr. Markham made the following points at the hearing:
(a) He claimed that the receiver had neglected the property; that he, Mr. Markham, had received calls from neighbours about the property's condition and there were concerns that people would move into the property, so he had no option but to retake possession and to spend money to put it into repair;
(b) He had discussions with a representative of Link Assets (on behalf of Promontoria) in April 2022 and he had been given an opportunity to buy the property. Furthermore, he had a buyer for the amount of €270,000 in 2018 and that purchaser is still available;
(c) Properties in the area are now worth €300,000;
(d) The loan is invalid because it is stated to be a 2006 loan but there is no reference to a 2006 loan on the Folio."
30. The Judge found no evidence in respect of the matters listed at (a)- (c) above and he observed that the appellant had every opportunity to deal with those matters on affidavit but did not do so. Accordingly, the Judge did not have regard to them. He further noted that as regards the remaining grounds of opposition, the appellant had not expanded upon them or explained how they had the consequences which he seemed to be contending for, namely that the respondents were not entitled to the relief being claimed.
31. Ultimately, after consideration of the issues that did arise in the case, the Judge was satisfied that the respondents had established a strong case that would likely succeed at the trial of the action. He so concluded having identified the principles governing interlocutory injunctions and applying (as he said he would at para. 11) the strong case test prescribed in Maha Lingham v. Health Service Executive [2005] IESC 89. Maha Lingam is authority for the proposition that the assessment of whether an injunction can properly be said to be mandatory for those purposes is a matter of substance rather than one of form. As Fennelly J. stated:
"... the implication of an application of the present sort is that in substance what the plaintiff/appellant is seeking is a mandatory interlocutory injunction and it is well established that the ordinary test of a fair case to be tried is not sufficient to meet the first leg of the test for the grant of an interlocutory injunction where the injunction sought is in effect mandatory."
32. Here, the Judge was satisfied to apply the strong case test to all the reliefs being sought by the respondents in circumstances where the stated intention of the respondents was to sell the Property. In this regard the Judge noted the words of Clarke CJ in Charleton v. Scriven [2019] IESC 28 at para. 4.5:
"There can be little doubt...that the strength of a plaintiff's case can be required to be assessed against a higher standard in certain categories of case, precisely because the grant of an injunction in such cases, in circumstances where the plaintiff ultimately failed, would run a greater risk of more serious injustice..."
and the distinction which Clarke C.J. said (at para. 6.12) was required to be drawn "in receivership cases between situations where the receivers concerned simply intend to maintain the situation pending a trial and ones where the substance of the interlocutory order sought is one designed to, in practice, bring the proceedings to an end" (for example by selling the property or asset).
33. As to the various matters that fell for consideration, in the first instance, the Judge was satisfied that the appellant had accepted a loan from First Active and executed a mortgage over the Property on 18 December 2006 as security for that loan. He was also satisfied that the loan and mortgage had been assigned to Ulster Bank by S.I. 489/2009 and then subsequently assigned by Ulster Bank to Promontoria pursuant to the Global Deed of Transfer.
34. In arriving at those conclusions, the Judge had regard to the documents exhibited in the affidavit sworn by Mr. O'Sullivan, including the Global Deed of Transfer. Whilst the Judge noted (as the appellant contended) that the Global Deed of Transfer was heavily redacted, he was nevertheless satisfied that the loan and mortgage were clearly identified in the Schedule thereto. Furthermore, Promontoria's ownership of the charge had been registered on Folio DN65271F. Whist, as the appellant maintained, the averments of Mr. O'Sullivan in relation to some of those matters was "technically hearsay", the Judge opined "that does not mean that it is not evidence": rather, it went to the question of admissibility, and what weight should be attached to it. He noted that the court was entitled to rely on hearsay in an interlocutory application. He observed, however, that a significant factor in deciding whether such evidence should be admitted was that whilst the application before him was an interlocutory application, "the grant of the relief would effectively determine the proceedings". A further significant factor was that the appellant did not deny many of the fundamental matters. The Judge also took cognisance of the fact that Mr. O'Sullivan had deposed that his means of knowledge included a perusal of Promontoria's books and records. In all of the circumstances, he concluded that he was entitled to admit and rely on the documents which Mr. O'Sullivan had exhibited which pertained to the loan and security and the Global Deed of Transfer.
35. The Judge was satisfied that the appellant had defaulted in his repayments and that Promontoria were entitled to appoint a receiver. He had regard to the letter of 5 November 2015 from Capita Asset Services which had informed the appellant of the transfer to Promontoria, to the letter of demand of 25 April 2018, and to the warning therein that in the event that the loan was not repaid within ten working days, Promontoria's right to appoint a receiver would be exercised. He also had regard to the Instrument of Appointment under which the Receiver was appointed.
36. The Judge noted that the appellant had accepted that he received the letter of demand of 25 April 2018. He was satisfied also that the appellant was aware of the Receiver's appointment. The Judge went on the observe:
"What is striking for present purposes is that there is no evidence of any correspondence from [the appellant] denying the debt, or the amount claimed, or taking issue with the transfer to Promontoria or the claim that there was a debt owed to Promontoria or with the appointment of the receiver. The reality is that the furthest [the appellant] goes in respect of many of these matters is to put the plaintiffs on proof of them."
37. The Judge noted that other than his "Notice of Demand and Default" seeking wet ink versions of various documents, the appellant had not said that he did not owe the monies.
38. Whilst accepting that the appellant was entitled to inspect the original documents, in the view of the Judge it did not necessarily follow from the fact that he was not provided with such opportunity that the respondents had failed to establish a strong case that they would succeed at trial. As the Judge stated: "The 2009 Act does not provide that the mortgagee's remedies will not be available to them unless there is compliance with section 91. Nor is the fact that the copies which are exhibited to the affidavits are not attested to be true copies of those documents fatal to the application. He continued: "The deponents have sworn on oath that they are copies of the documents. There is no reason to suspect that the copies which have been exhibited are not correct copies - this is particularly so where [the appellant] does not in fact even suggest that they are inaccurate and has not even denied that he executed some of the documents". Moreover, the appellant had not sought to avail of the opportunity to inspect the certified copies that were in court.
39. The Judge had regard to Charleton v. Hassett [2021] IEHC 746 wherein Allen J. refused an interlocutory injunction in circumstances where the financial institution/receiver intended on selling the house. An important issue in that case was the failure by the financial institution (Everyday) and the receiver to provide copies of the relevant documents. However, as the Judge commented, "there was a very particular set of circumstances in that case", including the question as to who was in possession, non-peaceable entry, uncertainty as to who the receiver was and whether the original appointment of a receiver had been novated. In Charleton v. Hassett, Everyday claimed to have taken the interest of AIB (the entity who had originally appointed the receiver). As Allen J. stated at para. 55 of that judgment, "all that Mr. Hassett had been provided with was a copy of the deed of appointment by AIB which could not by itself have authorised Mr. Charleton to do anything on behalf of Everyday."
40. The Judge was satisfied that the present case could be distinguished from Charleton v. Hassett. While it was the case that the appellant had sought to inspect the original documents, he was satisfied that the issues which arose in Charleton v. Hassett did not arise in the same way in the present case. He noted that whilst inspection was an important issue in Charleton v. Hassett, ultimately, relief had been refused on the basis that the plaintiffs had not discharged the burden of proof. Essentially, the court was "not satisfied that the plaintiff has adduced sufficient evidence of the novation by Everyday of [the receiver's] appointment but what prompted me to give a written judgment is what I will quite frankly say is my disquiet as to the circumstances in which the dispute as to the entitlement to possession of this house arose and was thereafter escalated". In the view of the Judge, Allen J. did not refuse the relief on the basis simply that the plaintiffs had not provided copies of the relevant documents and failed to comply with s. 91 of the 2009 Act.
41. Another of the arguments advanced by the appellant in the court below was that the loan was invalid because it was not registered on the Folio. Assuming that the appellant's reference to the loan was intended to refer to the mortgage, the Judge noted that Promontoria had taken a transfer of the charge which was in Ulster Bank's name and that Ulster Bank's ownership of the charge had been registered on the Folio on 24 January 2011. He was satisfied that there was "a strong case that this was the 2006 charge". This was clear from the fact that the dealing number of that registration (D2011LR01925ON) also appeared on a stamp of the copy of the 2006 mortgage which was exhibited to Mr. O'Sullivan's affidavit.
42. The Judge was also satisfied that Promontoria had established a strong case that they were entitled to appoint a receiver; the appellant had not pointed to any specific basis upon which he suggested Promontoria had no authority to do so. He noted that condition 12 of the Mortgage Deed provided that any receiver appointed had authority:
"(i) to enter upon and take possession of, collect and get in the Mortgaged Property or any part thereof and for that purpose take proceedings in the name of the Borrower or otherwise as he may deem fit;
(ii) to manage, sell, let, repair, decorate, alter, develop, improve or add to the Mortgaged Property or any part thereof in any manner whatsoever and with all the powers of an absolute beneficial owner."
43. He was further satisfied that there was a strong case that the appellant rented out the Property after the Receiver had been appointed and gone into possession and that the appellant was not entitled to do so. The appellant had not denied that was the case; his position was rather that he was entitled to do what he wished with his property, a contention which, as the Judge observed, ignored condition 5 of the Mortgage Deed pursuant to which the appellant had covenanted:
"... Not to exercise the powers of leasing or agreeing to lease and of accepting surrenders of leases conferred on a mortgagor in possession by the Conveyancing Acts 1881 to 1911 and not to create any lease or tenancy or part with or share the occupation or possession of the Mortgaged Property.
...
Not without the consent of the Lender to make any disposition of the Mortgaged Property subject to the Mortgage or create or purport to create any rent charge affecting it and not to create or permit to exist any mortgage or charge on the Mortgaged Property or the Life Policy or any other Life Assurance which will rank after the Mortgage."
44. He was therefore satisfied that there was a strong case the appellant was not entitled to rent out the Property and that, therefore, the second named defendants were not entitled to be in occupation.
45. Ultimately, being satisfied that the respondents had established a strong case overall, the Judge turned to whether the balance of justice favoured the grant or refusal of the interlocutory injunction being sought in circumstances where the expressed intention of the respondents was to sell the Property. He noted that he had no specific information regarding the occupants of the Property but acknowledged that any order requiring possession to be given up would have an adverse impact on them and so "this must be part of the assessment of the balance of justice". However, the Judge also was required to have regard to the fact that the occupants had known since at least 16 September 2022 that the respondents were claiming that the appellant was not entitled to rent out the Property and he noted that the occupants were aware of the application for interlocutory relief and the possibility of orders being made for a very considerable period of time. He noted that in any event, "the interests of justice can be addressed by an appropriate stay being granted".
46. In respect of the reliefs sought against the appellant, the Judge was of the view that the balance of justice favoured the granting of interlocutory relief. A number of factors led to that conclusion. Firstly, the appellant had issued separate proceedings against the respondents on 15 July 2020 in which he registered a lis pendens but had not progressed those proceedings. Secondly, the evidence disclosed that the appellant had rented out the Property to tenants before the appointment of the Receiver "and has been in receipt of considerable sums of money from the tenants to whom he rented the property after the receiver's appointment" and the appellant "has made no payments or offers of payment in respect of the loan which he does not deny he took out". Thirdly, in the context where the adequacy of damages was to be considered as part of the overall assessment of the balance of justice, the Judge considered that damages would not be an adequate remedy for the respondents if there was to be any damage. He so concluded as the evidence "at this stage" was that the appellant had not repaid a loan which he took out in 2005, had made no payments since 2016 and seemed to owe "somewhere in the region of €400,000". Furthermore, the appellant had not sought to suggest that he would be able to pay any award of damages.
47. However, balanced against those considerations had to be the fact that there was no evidence of the value of the Property and no suggestion that the Property was deteriorating such that the respondents might suffer a loss if the sale was delayed pending the determination of the substantive proceedings. As the Judge opined:
"Thus, a balance has to be struck between the likelihood that damages would not be an adequate remedy for the plaintiffs because there is no evidence that an award of damages could be discharged by [the appellant] and the absence of evidence that damage would in fact be suffered by the plaintiffs".
48. On the other hand, the Judge considered that damages would be an adequate remedy for the appellant in the event that the respondents obtained the injunction but failed in the substantive proceedings. He was also satisfied that there was no suggestion that the appellant lived in the Property (his home address having been given as a different address). Moreover, the appellant had not asserted that there was anything particular about the Property which might suggest that damages would not be an adequate remedy for him. Thus, taking all the circumstances into account, the Judge found the balance of justice favoured the grant of the relief being sought by the respondents. This was, however, subject to the caveat set out by the Judge at para. 63 of his judgment (of which more anon).
49. Having so outlined, the Judge granted the relief sought by the respondents in their notice of motion. The consequent Order of the High Court was made on 24 April 2024 (perfected 15 May 2024). It is from this Order that the appellant now appeals.
The grounds of appeal
50. In his notice of appeal and written submissions, the appellant advances some 11 grounds of appeal. In short, he maintains that the Judge erred in fact and/or in law:
(1) In claiming that the appellant did not deny the debt owed to Promontoria and did not provide evidential correspondence.
(2) In accepting a heavily redacted Global Deed of Transfer assigning the loan and mortgage to Promontoria.
(3) In ignoring the fact that the evidence provided by the respondents is mostly predicated upon the use of hearsay evidence.
(4) In accepting copies of copies of documents which were not attested to be true copies of the original documents.
(5) In ignoring the fact that the appellant was denied the opportunity of inspecting original documents as set out in the appellant's correspondence with the respondents.
(6) In ignoring case law presented relating to the validity of the Receiver's appointment.
(7) In deciding that the respondents had established a strong case that the appellant owed a debt to Promontoria.
(8) In deciding that McCleary v. McPhillips [2015] IEHC 591 was not authority for the proposition of the appointment of a receiver for the purpose of purporting to exercise powers which he does not have qua receiver. (The Court understood this ground to mean that the appellant alleges that the Receiver purported to use powers which he did not have-see para. 82 below).
(9) In deciding that Charleton v. Scriven [2019] IESC 28 is not authority for the proposition that the respondents were in fact using the interlocutory application as a means of obtaining summary judgment.
(10) In deciding that there was no question to be answered in relation to who was in possession and non-peaceable entry.
(11) In accepting as appropriate a mortgage/charge dated 2006 in favour of First Active and which was not registered as a burden on Folio 65271F in 2006 and only later in 2011 registered as a charge in favour of Ulster Bank.
The respondents oppose the appeal in its entirety.
Discussion and Decision
51. In his oral submissions to the Court, the appellant stood over his 11 grounds of appeal. I will duly address those arguments but before doing so, it is apposite to first address the appellant's overarching argument on the appeal, as canvassed in his oral submissions.
The alleged failure of Promontoria to establish its ownership of the loan and charge in question.
52. The appellant asserts that the Judge erred in granting Promontoria interlocutory relief where it had not established its ownership of the loan and charge in question. He points to the fact that the original loan was with First Active in 2005. Yet, Promontoria based its ownership of the loan and charge on a Global Deed of Transfer which references only a purported transfer to Promontoria from Ulster Bank, without reference to First Active.
53. The respondents say that there is no merit in the argument the appellant advances. In this regard, counsel points firstly to the fact that on 18 December 2006 the appellant charged the Property in favour of First Active. Thereafter, on 15 February 2010, Ulster Bank acquired all rights accruing to First Active on foot of any existing loan instruments pursuant to the terms of the Central Bank Act 1971(Approval of Scheme of First Active plc and Ulster Bank Limited) Order 2009 (S.I. No. 481 of 2009) which Order is exhibited in Mr. O'Sullivan's affidavit. Undoubtedly, in my view, S.I. No. 481 of 2009 establishes Ulster Bank's acquisition of First Active's loan and security portfolio.
54. Furthermore, counsel points to the fact that following the absorption of First Active's business into Ulster Bank on foot of S.I. No. 481 of 2009 the charge executed by the appellant in December 2006 in favour of First Active was registered on Folio 65271F in the name of Ulster Bank on 24 January 2011, and thereafter registered in the name of Promontoria on 15 October 2015 following the Global Deed of Transfer entered into between Ulster Bank and Promontoria on 29 September 2015. The respondents' contention is that notwithstanding the fact that the Global Deed of Transfer is heavily redacted, the unredacted portions of same are nevertheless sufficient, for the purpose of the interlocutory relief being sought by Promontoria, to show that Promontoria has acquired Ulster Bank's interest in the Property.
55. I accept that to be the case. Pursuant to Clauses 1 and 2 of the Global Deed of Transfer, Ulster Bank (the registered owner of the Property) "hereby grants conveys, assigns, transfers and assures to [Promontoria], subject to the subsisting rights of redemption of the Borrowers...all its right, title, interest, benefit and obligation...in and under each security, Underlying Loan, and each of the Finance Documents, and the Seller's right, title, interest in and to the Ancillary Rights and Claims and including, without limitation all right, title, interest, benefit and obligation of [Ulster Bank] in the mortgages, charges, security assignments and other Security Interests constituted by the documents listed in Schedule 1..." of the Global Deed of Transfer. Schedule 1 lists, inter alia:
· The mortgage entered into between First Active and the appellant on 18 December 2006.
· First Active's loan offer of 17 November 2005 and the appellant's acceptance thereof on 10 December 2005.
· The relevant folio. As exhibited in Mr. O'Sullivan's affidavit, entry no. 7 on the folio shows that on 15 October 2015, Promontoria became the registered owner of the charge registered by Ulster Bank on 24 January 2011.
56. Hence, I accept the respondents' contention that the unredacted portions of the Global Deed of Transfer, as exhibited in Mr. O'Sullivan's affidavit, bear witness to Ulster Bank's unconditional assignment to Promontoria of its interest in the loan facility and mortgage entered into between the appellant and First Active in 2005/2006. That the mortgage/security Ulster Bank acquired relates to the Property was, as the Judge observed, deducible from the fact that the dealing number (D2011LR01925ON) of Ulster Bank's registration of its charge also appeared on a stamp of the copy of the 2006 mortgage which was exhibited to Mr. O'Sullivan's affidavit.
57. Whilst it is the case that the appellant takes issue with the myriad redactions in the Global Deed of Transfer (addressed further below), the fact of the matter is that he has produced no evidence to counter the sworn evidence of Mr. O'Sullivan that Promontoria is the entity which has the interest in the loan and mortgage in issue in the within proceedings. That being said, it is of course open to the appellant at the trial of the action to call on Promontoria to produce its chain of title. However, for the interlocutory relief being sought here, I am satisfied Promontoria has established sufficient title to the Property for present purposes.
58. There is a further basis upon which the appellant maintains that Promontoria has not established its ownership of the loan and charge. He asserts that in June 2024 (subsequent to the High Court judgment), he received telephone and email correspondence from an entity - BCM Global- asking if he would like to settle his debt. On foot of that, the appellant says that he offered the sum of €240,000 which, he says, was refused on the basis of BCM Global's assertion that the Property was worth more than what the appellant was offering, something the appellant denies given what he describes as the run-down condition of the Property. The appellant contends that in email correspondence on 11 November 2024, he repeated his offer of €240,000 to which he received no response.
59. In short, the appellant's contention is that the involvement of BCM Global belies Promontoria's assertion that it owns the loan and charge in question.
60. The respondents say that the appellant's contention that the involvement of BCM Global is inconsistent with Promontoria's title is without merit. They point to the fact that BCM Global (formerly known as Capita Asset Services) is the agent of Promontoria and say that, had the appellant enquired of Promontoria, the change of name would have been explained to him. They also submit, insofar as the appellant's interactions in June 2024 with BCM Global are concerned, that the Court should not have regard to same.
61. I am satisfied that this ground of appeal cannot avail the appellant. Firstly, the argument that the actions of BCM Global belie Promontoria's assertion that it has an entitlement to deal with the Property is not sustainable in light of the Court's finding (at least for present purposes) that the documents Promontoria has put before the Court establish its ownership of the mortgage/security in issue here. Secondly, although not on affidavit, I have to take cognisance of the fact that BCM Global is Promontoria's agent, counsel for the respondent explaining that the entity was previously known as Capita Asset Services, the entity appointed by Promontoria on 23 October 2015 and indeed who wrote to the appellant as far back as 5 November 2015 to advise him that it had been appointed by Promontoria as its agent effective from 23 October 2015, and that it was taking over the day-to-day management of the appellant's loan facilities including managing the collection of repayments. Hence, even taking at its height the appellant's contention that he was approached in June 2024 by BCM Global requesting that he make an offer to settle his debt, the probability is that if BCM Global did approach the appellant, it did so in its capacity as agent of Promontoria. Sight should also not be lost, as counsel for the respondents points out, of the fact that in July 2024 and November 2024, the appellant appeared to be offering BCM Global (Promontoria's agent) €240,000 for the Property whilst at the same time contending that Promontoria was not the owner of the loan and charge in question. Thirdly, insofar as the appellant presses his interactions with BCM Global, the affidavit evidence before the Court from the respondents is that the Property is sale agreed since 25 June 2020. While the appellant asserts that the purchaser has withdrawn from the sale, the respondents say the position remains as per the respondents' affidavit evidence. In my view, the respondents' affidavit evidence (shored up as it is by counsel's submissions) must prevail.
62. In summary, the appellant has not made out the second basis upon which respondents' entitlement to deal with the Property is challenged.
63. I turn now to the 11 discrete grounds in the appellant's notice of appeal as elaborated on in his written submissions (some of which, it must be said, touch upon matters already addressed above).
1. The alleged error on the part of the Judge in saying that the appellant did not deny the debt owed to Promontoria
64. The appellant says the Judge erred in finding that he did not deny the debt. He points to his affidavits sworn on 5 December 2022 and says that the Judge's failure to acknowledge his denial "constitutes a fundamental error in fact". He further points to correspondence dated 11 December 2018, 11 February 2019 and 22 February 2022 wherein he requested clarification and evidence of the debt's viability, which, it is said, was not provided by the respondents. It is contended that the Judge's ignoring of this critical documentation compromised the appellant's right to a fair trial as enshrined in Article 6 of the European Convention on Human Rights.
65. In his sworn affidavits of 5 December 2022, the appellant averred variously that he did not believe that he owed Promontoria a debt and that he did not owe Promontoria a debt. These denials were duly acknowledged by the Judge at para. 38 and, so, it is not correct for the appellant to say that the Judge ignored those denials. Thus, to my mind, there is no question of the appellant having been denied a fair trial. What the Judge was at pains to point out was that nowhere in his affidavits did the appellant deny having drawn down money in 2005 or that he executed a mortgage in 2006 or that he went into arrears and was served with a letter of demand in 2015. Contrary to what the appellant appears to be suggesting, the Judge was not confined to the appellant's nuanced denials, or indeed the correspondence upon which he relies. As the respondents point out, the Judge was entitled to look to the entirety of the material before him which included the Global Deed of Transfer (which referenced the underlying loan and security documents which were in any event exhibited in Mr. O'Sullivan's affidavit) and from which, as I have already found, the Judge reasonably concluded that First Active's interest in the debt and security was acquired by Ulster Bank and that, in turn, the latter's title to the loan and security was assigned to Promontoria on 29 September 2015-all of which was sufficient for the Judge to find that Promontoria had made out a strong case that it had validly acquired the loan facility and the attendant security.
2. The Judge's alleged error in accepting a "heavily redacted" Global Deed of Transfer.
66. The appellant describes the Judge's acceptance of a heavily redacted Global Deed of Transfer without sufficient scrutiny as "a significant legal error" and contends that the redactions prevented a full understanding of the terms of the assignment from Ulster Bank to Promontoria, which, it is said, are central to establishing whether the respondents had the legal standing to enforce the debt. It is submitted that the redacted portions of the Deed likely contained information crucial to the case. The appellant contends that the case law requires that for an assignment to be effective all material details must be disclosed and available for scrutiny by the opposing party and the court. He asserts that by accepting the material before him without further inquiry, the Judge failed to discharge his duty thereby prejudicing the appellant's position.
67. The respondents say that the appellant fails to specify which redactions he is contesting and how they impact on his understanding of the Global Deed of Transfer. They say that Promontoria was able to satisfy the court that it had acquired Ulster Bank's interest in the loan and security by reference to the unredacted portions of the Deed, and they point to the fact (as explained to the High Court) that the Deed was redacted on grounds of commercial sensitivity, bank/client sensitivity and on the basis of irrelevance and that the appellant has not challenged any of those grounds.
68. Firstly, having regard to the information that was made available to the Judge via the unredacted portions of the Global Deed of Transfer (already referred to at para. 54 above), I am not persuaded by the appellant's argument. Secondly, as said by Noonan J. in Launceston Property Finance v. Walls [2018] IEHC 610:
"It is by now well settled that in claims of this nature involving loan portfolio sales, it is established and accepted that plaintiffs are entitled to redact documents for reasons of commercial sensitivity and privacy rights of third parties."
Ground 2 is not made out.
3. The alleged ignoring by the Judge that the evidence presented by the respondents was mostly predicated on hearsay.
69. The appellant contends that the respondents' case in the court below was heavily reliant on hearsay evidence which the Judge improperly admitted. In this regard, he cites, inter alia, Ulster Bank Ireland Ltd v. Dermody [2014] IEHC 140, Promontoria (Aran) Ltd v. Burns [2019] IEHC 75 and Bank of Scotland v. Fergus [2012] IEHC 131. It is contended that the aforesaid case law highlights the strict approach taken by the courts in ensuring that hearsay evidence, especially in financial and debt recovery cases, must be scrutinised for its reliability and be justified by a clear exception to the hearsay rule. The appellant contends that none of the exceptions to the hearsay rule apply to the evidence in question here. He says that the Judge's failure to exclude this evidence was a significant legal error that tainted the entire judgment.
70. The respondents point out that the appellant does not identify the hearsay with which he takes issue. Whilst they accept that Mr. O'Sullivan (who swore an affidavit on behalf of Promontoria) was not present when the appellant signed the loan facility letter, drew down the loan and executed the mortgage on the Property, they rely on the fact that none of those matters are disputed by the appellant in his replying affidavit. It is also contended that to the extent that the matters to which Mr. O'Sullivan deposed comprise hearsay, they are nevertheless permissible in an interlocutory application.
71. I accept that to be the case, as indeed the Judge also noted at para. 50 of the judgment. Order 40, r. 8 of the Rules of the Superior Courts specifically makes provision for receipt of such evidence. As the Judge recognised, the salient question is the extent to which a court should rely on hearsay evidence and the weight to be attached to it. In the circumstances of this case, I perceive no error in the Judge's reliance on the evidence pertaining to the relevant loan and security (which in any event the appellant did not dispute he executed). Furthermore, as the Judge correctly noted, Mr. O'Sullivan's means of knowledge included a perusal of Promontoria's books and records. Moreover, as the Judge noted, the material facts in the injunction application were the appellant's default and the appointment of the Receiver, in respect of which direct evidence was given by Mr. O'Sullivan and Mr. O'Brien. Ground 3 is not made out.
4. The alleged error on the part of the Judge in accepting copies of copies of documents which were not attested to be true copies of the original documents.
72. The appellant contends that the acceptance of unverified copies of documents by the Judge constituted a serious error. He asserts that the respondents failed to provide an explanation for the absence of the original documents as they were required to do. Moreover, he says that the copies that were presented were not attested to be true copies. It is said that the respondents' failure in the above regards undermines their credibility.
73. As regards the appellant's complaint under this ground of appeal, I agree with the respondents that the complaint is misconceived. All of the documents upon which the Judge relied were exhibited to the Mr. O'Sullivan's and Mr. O'Brien's affidavits in the ordinary way. The consequence of their having been exhibited is explained by Delany and McGrath on Civil Procedure (5th ed., 2023):
"It is common to exhibit documents to an affidavit (which must be accompanied by an exhibit sheet signed by the deponent) which thereby become evidence in the proceedings."
This was done in the present case and, so, Ground 4 is not made out.
5. The alleged error on the part of the Judge in ignoring the fact that the appellant was denied the opportunity of inspecting original documents.
74. The appellant says that his entitlement to inspect the original documents was unjustly denied. He submits that the inability to inspect original documents impeded his capacity to effectively challenge the authenticity and validity of the evidence upon which the respondents were relying. He contends that the Judge's failure to uphold his rights warrants a reconsideration of the judgment.
75. It is the case that s. 91 of the 2009 Act makes provision for the inspection of original documents. In the instant case, the appellant was not afforded an opportunity to do so.
76. At para. 53, the Judge held that it did not follow from the fact that the appellant was deprived of this opportunity that the respondents had not made out a strong case that they would succeed at trial. He noted that the 2009 Act did not provide that the mortgagee's remedies would not be available unless there was compliance with s. 91. More pertinently, in this case, he noted that the respondents' deponents (Mr. O'Sullivan and Mr. O'Brien) had sworn on oath that the copies exhibited in their respective affidavits were copies of the original documents upon which the respondents were relying. The Judge was also satisfied that the fact that the copies exhibited to the affidavits were not attested to be true copies of the original documents was not fatal to the application for injunctive relief. In his view, there was no reason to believe that the copies exhibited were not correct copies in circumstances where the appellant had not even suggested they were inaccurate, nor even denied that he had executed some of them.
77. I am satisfied that it was entirely within the remit of the Judge's discretion to so conclude in the absence of any real challenge by the appellant to the correctness of the documents and particularly where there was no denial on the part of the appellant to having executed some of the documents in question. I also reject the appellant's claim of procedural unfairness in circumstances where it is clearly recorded in the judgment that certified copies of the documents were available in court for inspection but that the appellant had not sought to avail of the opportunity to inspect those copies. The appellant has not succeeded in relation to Ground 5.
6. The alleged error on the part of the Judge in ignoring case law relating to the validity of the Receiver's appointment.
78. The appellant says that the Judge failed to properly consider case law he presented regarding the validity of the Receiver's appointment. He says that in the court below he argued that the appointment of the Receiver did not comply with the necessary statutory and contractual requirements, thus rendering it invalid. It is argued that the Judge's failure to engage with those arguments "led to a chain of consequential errors" including the acceptance of actions "by an improperly appointed receiver".
79. Whilst the respondents do not cavil with the general proposition that there must be strict compliance with legal and procedural requirements pertaining to the appointment of a receiver, they assert that the appellant does not identify "the necessary statutory and contractual requirements" he claims were not complied with here or explain how there was a failure to observe them.
80. I accept the respondents' submission. Neither in his written nor oral submissions does the appellant set out the alleged frailties in the Receiver's appointment. He does not, for example, say how the Judge erred in relying on Condition 12 of the Mortgage Deed, which specifically granted the mortgagee authority to appoint a receiver in certain circumstances. Nor does he say how the factors set out in Condition 12 were not met here. Indeed, as the Judge noted, there was no evidence of any correspondence from the appellant taking issue with the Receiver's appointment: the furthest the appellant went was to put the respondents on proof of the appointment. Ground 6 is not made out.
7. The alleged error on the part of the Judge in finding that the respondents had established a strong case that the appellant owed a debt to Promontoria.
81. This ground of appeal largely replicates the appellant's overarching submission on the appeal, which is that the Judge incorrectly concluded that the respondents had made out a strong case that the appellant owed a debt to Promontoria. It is contended that contrary to the requirements of case law, the respondents had failed to provide compelling, clear, and unequivocal evidence of their ownership of the debt and instead relied on hearsay evidence. I reject that contention. For the reasons I have set out earlier in this judgment, I am satisfied that the Judge was well entitled on the evidence he had before him to find that the loan and mortgage had transferred to Promontoria. Accordingly, this ground of appeal is not made out.
8. The alleged error on the part of the Judge in deciding that McCleary v. McPhillips [2015] IEHC 591 is not authority for the proposition of the appointment of a receiver for the purpose either of purporting to exercise powers which he does not have qua receiver.
82. As framed, this ground of appeal is difficult to comprehend particularly in circumstances where the Judge did not in the judgment make any reference to McCleary v. McPhillips. One can deduce, however, from the appellant's written submissions, that his contention is that the Judge erred in failing to find that the Receiver purported to use powers which he did not have and that the actions taken by the Receiver were therefore invalid.
83. As is clear from the judgment, the Judge was satisfied, insofar as it was being suggested by the appellant that the Receiver had no power to enter or take possession of the Property and thereafter sell it, that Condition 12 of the Mortgage Deed made provision for same. That being the case, in the absence of any detail in the appellant's appeal submissions as to how the Receiver otherwise exceeded the scope of his powers, or detail as to any alleged frailties in the manner in which the Receiver conducted his business, this ground of appeal does not get off the ground.
9. The alleged error on the part of the Judge in deciding that Charleton v. Scriven is not authority for the proposition that the respondents were in fact using the interlocutory application as a means of obtaining summary judgment.
84. By this ground, the appellant contends that the Judge erred in dismissing the relevance of Charleton v. Scriven [2019] IESC 28 to the within injunction application in circumstances where, it is alleged, the respondents sought to use the interlocutory application for an injunction "to achieve a de facto summary judgment". He submits that the principles established in Charleton v. Scriven should have been applied to protect his right to a fair trial and prevent the respondents from obtaining summary judgment through improper means.
85. It is the case that at para. 7.1 of Charleton v. Scriven, Clarke C.J. cautioned that receivership injunctions should not be used as a form of obtaining summary judgment. However, as the respondents point out, he did not go so far as to say that a receivership injunction could never be granted to permit the sale of a secured property. Furthermore, as the Judge observed, Clarke C.J.'s caution was in the context of warning against applicants securing an interlocutory injunction but then not prosecuting the substantive proceedings.
86. In the present case, it is clear from the judgment that whilst the Judge found that the balance of justice favoured the grant of the relief sought by the respondents, he emphasised that this was "subject to the point that Clarke CJ made in Charleton v Scriven about an interlocutory injunction not being used as a form of summary judgment." He outlined the court's position in the following terms:
"The plaintiffs are not entitled to secure an injunction and then not prosecute their proceedings. That would amount to using the interlocutory injunction application as a form of summary judgment procedure. The defendant is entitled, if he wishes, to a determination of those proceedings and, indeed, to pursue a counterclaim, and, if it transpires that the injunction was incorrectly given, to seek damages on foot of the plaintiffs' undertaking. I will in those circumstances make directions to get the matter ready for trial. I will, in the first instance, give the parties an opportunity to propose appropriate directions and, in the event of disagreement, I will determine an appropriate set of directions." (para. 63)
Therefore, insofar as the appellant, at para. 28 of his written submissions, suggests that the respondents' use of the interlocutory injunction procedure was to "sidestep a full hearing on the merits", that is palpably not the case, having regard to what is said at para. 63 of the judgment. I am satisfied that the Judge put in place sufficient safeguards to ensure that the respondents, having obtained interlocutory relief, "would not rest on their laurels", to borrow the words of Clarke C.J. in Charleton v. Scriven. Ground 9 is not made out.
10. The alleged error on the part of the Judge in deciding that there was no question to be answered in relation to who was in possession and non-peaceable entry.
87. By Ground 10, the appellant contends that the Judge failed to consider whether the respondents' entry onto the Property was peaceable or lawful in circumstances where he raised substantial issues regarding the circumstances of the entry. It is said that the Judge's failure in this regard undermined the possession claim made by the respondents. The appellant also contends that the burden was on the respondents to prove that their entry was lawful and peaceable, which, it is said, they failed to do.
88. The respondents describe Ground 10 as "an entirely novel argument" and say that this was not a point argued before the High Court and therefore not addressed in the judgment.
89. I note that at para. 5 of his affidavit, the Receiver avers that at the time of his appointment the Property was being rented out by the appellant to tenants but that subsequently, at his request, the tenants vacated the Property and possession was secured by the Receiver's agents on 17 April 2020. In his reply to the Receiver's affidavit, the appellant avers that he was not aware of the Receiver's and his agents' activities through 2020, 2021 and early 2022, but was aware that "some unknown person or persons were attending my property, interfering with my property and causing damage to my property". However, the appellant does not address the Receiver's evidence that tenants in occupation of the Property voluntarily vacated the Property at the Receiver's request. Furthermore, nowhere in his affidavits does he aver that the Receiver's taking possession of the Property in April 2020 was not peaceable. Whilst it is clear that in the court below, the appellant sought to argue that the Receiver neglected the Property and that he, the appellant, had received complaints from neighbours about its condition, there is no suggestion in the judgment, other than the argument the appellant raised as regards the lawfulness of the Receiver's appointment (which I have earlier addressed), that the appellant specifically contended in the court below that the Receiver's entry into possession in April 2020 was not peaceable or that the Receiver was incorrect in deposing that tenants voluntarily left the Property at his request. I agree with the respondents that in the absence of such arguments having been advanced in the court below, the appellant cannot now seek to do so in circumstances where he could have raised those arguments in the High Court.
90. I also find merit in the respondents' contention that it is difficult to see how the appellant's argument arises in the interlocutory injunction appeal in circumstances where the entire purpose of the respondents' application is to secure possession in circumstances where the Receiver was put out of possession by the appellant or persons acting on his behalf. I agree with the respondents when they say that to the extent that the appellant is aggrieved in relation to how the Receiver first went about obtaining possession, he is free to agitate that issue in the plenary proceedings.
11. The alleged error on the part of the Judge in accepting the validity of a mortgage/charge in favour of First Active which was not properly registered as a burden on Folio DN65271F in 2006 but rather only later registered as a charge in favour of Ulster Bank.
91. By this ground, the appellant contends that the Judge erred in accepting the validity of a mortgage/charge that was not properly registered on Folio DN65271F at the time it was executed in 2006. He says that the late registration of the charge by Ulster Bank in 2011 raises significant legal issues, particularly regarding the priority of charges and in this regard when referring to case law, presumably intended to cite ACC Bank plc v. Markham [2005] IEHC 437. He contends that the failure to register the charge in 2006, and its subsequent registration in 2011, damaged his rights, particularly in relation to the enforceability of the mortgage.
92. The respondents say that it is not clear what exactly the appellant's complaint is under this ground.
93. Whilst the ground might have benefited from a clearer exposition, I think that it can be deduced that the premise underlying the ground is that First Active's failure in 2006 to register its charge tainted all subsequent dealings concerning the charge. Insofar as this is what underlies Ground 11, for the reasons already set out above, I am satisfied that from the materials he had before him, the Judge had sufficient basis to find that the respondents had made out a strong case that they held the requisite interest in the charge. As I have already made clear, I agree with the Judge when he states, at para. 55, that the fact the mortgage/charge obtained by First Active in 2006 was not registered on the Folio was not fatal to the establishment of a strong case in circumstances where Ulster Bank's ownership of the charge had been registered on the Folio on 24 January 2011, and where Promontoria's charge was also registered following its acquisition of the appellant's loan and security from Ulster Bank.
94. I also agree with the respondents that the issue of priorities, as raised by the appellant, does not arise here in circumstances where there are no extant prior encumbrances on Folio DN65271F, and where the only later encumbrance was the lis pendens, which has now been vacated by order of the High Court.
95. Furthermore, insofar as the appellant relies on Ground 11 as a basis to impugn the respondents' entitlement to seek interlocutory injunctive relief in relation to the Property, as provided for in s. 31 of the Registration of Title Act 1964, the Folio is to be taken as conclusive evidence of the burdens appearing thereon. Promontoria's charge, as appears at entry 7 on the Folio, is the burden in question here. For the foregoing reasons, Ground 11 is not made out.
96. In summary therefore, the appellant has not succeeded in establishing that the Judge erred when he found that the respondents had established a strong case that they would be likely to succeed in securing relief against the appellant at the trial of the action.
97. Turning now to the balance of justice, I think it is fair to say that the appellant's arguments on the appeal were largely directed to whether the respondents had established a strong case for the interlocutory relief they were seeking. He said little about the High Court's assessment of the balance of justice. Save the argument advanced at ground 9 of his notice of appeal (dealt with above), he did not, either in his written or oral submissions, address the Judge's other findings as regards the balance of justice. For completeness, however, I will address those findings insofar as they concern the appellant. I have earlier (at paras. 45-48 above) reprised the Judge's consideration of the balance of justice.
98. In the first instance, I am satisfied that in considering where the balance of justice lay, it was entirely appropriate for the Judge to factor in the fact that the appellant, after issuing the lis pendens proceedings and registering a lis pendens, did not progress those proceedings even to the point of serving the plenary summons.
99. In my view, the Judge was equally within his discretion in factoring in the fact that the appellant had been in receipt of considerable sums of money from renting out the Property to tenants both before and after the Receiver's appointment, and yet made no payments or offers of payment on foot of the 2005 loan (which he did not deny he took out). Nor did the Judge err in deciding that damages would not be an adequate remedy for the respondents, in the event there was damage, in circumstances where the evidence was that the appellant had made no payments on the loan since December 2016 and had not suggested he would be in a position to pay damages. I note that in concluding as he did, the Judge properly weighed the aforesaid factors against a consideration that there was no evidence as to the value or estimated value of the Property, nor evidence that it was deteriorating such that the respondents would be at a loss if the sale of the Property was delayed. That he ultimately found, essentially, after balancing those considerations, that the scales were tipped in favour of the respondents was, in my view, a matter entirely within his discretionary remit.
100. I am also satisfied, in relation to the adequacy of damages for the appellant, that the Judge acted entirely within his discretion in concluding that damages would be an adequate remedy in the event the respondents failed at trial. As the Judge pointed out, the Property was not the family home of the appellant. Nor has the appellant asserted that there is anything particular about the Property that might lead to a conclusion that damages would not be an adequate remedy. I am satisfied that the Property is not being held "to a particular and personal end" in the sense contemplated in Ryan v. Dengrove [2021] IECA 38 (at para. 84). Nor is it an asset in respect of which it can be said the appellant has an emotional investment in the sense considered in Betty Martin Financial Services Ltd. v. EBS DAC [2019] IECA 327 (paras. 92-93).
101. In all the circumstances, the Judge's assessment of the balance of justice cannot be faulted.
Summary
102. For the reasons set out above, I would dismiss the appellant's appeal in the injunction proceedings and affirm the Order of the High Court.
The costs of the appeal in the injunction proceedings
103. The appellant has not succeeded in his appeal against the Judgment and Order in the injunction proceedings. It would seem to follow that the respondents should be awarded their costs. If, however, any party wishes to seek some different costs order to that proposed they should so indicate to the Court of Appeal Office within 21 days of the receipt of the electronic delivery of this judgment, and, if necessary, a short costs hearing will be scheduled. If no indication is received within the 21-day period, the Order of the Court, including the proposed costs order, will be drawn and perfected.
The costs of the lis pendens appeal (2022/153MCA 2024/128)
104. As referred to earlier, at the hearing of his appeals the appellant withdrew his appeal against the Order made in the lis pendens proceeding. On foot of that withdrawal, the respondents sought their costs. Submissions were made by both sides. The appellant argued that the Court should make no order for costs in circumstances where the respondents were seeking to sell the Property.
105. Having heard the submissions of both sides, I am satisfied to award the respondents their costs in the appeal against the Order made in the lis pendens proceedings. I find no basis upon which to conclude that a no costs order would meet the justice of the case, particularly in circumstances where the appellant did not progress his plenary proceedings upon which the registration of the lis pendens was predicated (the appellant himself indeed conceding that he had no defence to the respondents' s. 123(b)(ii) application)-all of which suggest that the issuing of the appellant's plenary proceedings, and the registration of the lis pendens, were aimed at disrupting the respondents' entitlement to pursue the remedies available to them under the security instrument.
106. As this judgment is being delivered electronically, Pilkington J. and Butler J. have indicated their agreement therewith and with the orders I have proposed.
Result: Appeal Dismissed