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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Ahern v. Michael O'Brien & Co. Ltd. [1989] IEHC 22 (8 May 1989) URL: http://www.bailii.org/ie/cases/IEHC/1989/22.html Cite as: [1989] IEHC 22

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Neutral Citation No: [1989] IEHC 22

THE HIGH COURT

Record No. 1984/559

IN THE MATTER OF THE ARBITRATION AWARD OF EDWARD GLEESON

IN THE MATTER OF THE ARBITRATION ACTS, 1954 AND 1980 BETWEEN/

DAVID AHERN

PLAINTIFF

AND

MICHAEL O'BRIEN & CO. LTD.

DEFENDANT

Judgment delivered by O'Hanlon J., the 8th May, 1989.

The Plaintiff recovered judgment against the Defendant for the sum of £1,791.68 with interest from the 15th March 1982 totaling £1,346.74 to the 10th February, 1989, and costs amounting to £1,076.50 of arbitration proceedings, and further costs of these High Court proceedings. There is now due and owing by the Defendant to the Plaintiff a total of £4,214.92 together with the High Court costs which have not yet been taxed and ascertained. The Plaintiff applied to the Court to appoint a receiver by way of equitable execution over certain ground rents payable to the Defendant out of properties comprised in Folio 33668 of the Register of Freeholders, Co. Cork, the Defendant Company being entitled to a moiety interest in the said lands in common with one, Thomas Barber.

Generally speaking, a receiver by way of equitable execution will not be appointed over payments to be made in the future, but only over payments which have already accrued due and which have not as yet been paid over to a Defendant. See the decision in Clery & Co. (1941 Ltd. v. O'Donnell, (H.Ct.) 78 ILTR 190. In exceptional circumstances, however, this rule has been relaxed, and Counsel for the Plaintiff has referred me to the decision in Orr v. Grierson, 28 LR Z 20, where a receiver by way of equitable execution was appointed over accruing gales of a net head-rent for a limited number of years, estimated as sufficient to satisfy a judgment.

That decision was considered by the King's Bench Division in Ireland in the later case of Cohen v. Ruddy, (1905) 2 IR and distinguished, and the Court declined to follow the decision in Orr v. Grierson in the circumstances of that case. The basis for the distinction drawn was the circumstance that in the later case a number of payments had to be made by the landowner out of the annual rent received by him. Fitzgibbon LJ said: "It is not the practice of the King's Bench to appoint a plaintiff a receiver by way of equitable execution, unless where it is proved that all the money that can come to his hands under the execution will be the money of the defendant."

In the present case, it appears prima facie that the moneys payable in favour of the Defendant by way of ground rents may not be subject to disbursements in favour of third parties (save that tax may be payable in respect of same to the Revenue Commissioners, whether deducted at source or payable by the recipient of same).

I propose to make the appointment sought, on a conditional basis, as was done in the case of Orr v. Grierson, giving the Defendant an opportunity to come in and argue that the order should not be made absolute, if it thinks fit to do so.

The Order will be for the appointment of Mr. Kevin Nagle, Solicitor, of 48 South Mall, Cork, as receiver by way of equitable execution over the Defendant's interest in the ground rents payable out of properties erected on lands at Carrigaline West, in the Barony of Kerrycurrihy, Folio No. 33668 of the Register of Freeholders, County of Cork, the said properties being identified as entries Number 7 and 9 to 65 inclusive and entries Numbered 67, 68 and 69 of Part 3 of the said Folio, due and accrued due, for the years commencing with the first installment of each of the said rents due to the Defendant after service of this Order, the amount to be so received to be applied towards satisfaction of the amount due on foot of the judgment of this Court dated the 3rd day of December, 1984, unless cause be shown to the contrary on or before the second motion day of the Trinity Term, 1989, and the matter to be listed before the Court on the second motion day of that term for the purpose of making any further Order that may be required in relation to costs or otherwise.

R. J. O'HANLON 8th May, 1989.