High Court of Ireland Decisions

THE HIGH COURT

[2025] IEHC 180

Record No. 2021 3606P

 

Between

 

CHARLES MCGUINNESS

Plaintiff

 

and

 

ALLIED IRISH BANKS plc, EVERYDAY FINANCE DESIGNATED ACTIVITY COMPANY and DAMIEN HARPER

Defendants

 

 

Judgment of Mr. Justice Conor Dignam delivered on the 1st day of April 2025

 

INTRODUCTION

1.            The plaintiff seeks interlocutory injunctions in respect of lands which are fully described in the Plenary Summons and Notice of Motion. They are lands which are situate at Main Street, Cavan, and are referred to as "the Main Street Property" or simply as "the Property".

 

2.            He seeks Orders:

 

(i)           restraining the defendants and all persons having notice of the Order from entering, watching, besetting, threatening or otherwise taking possession of the Main Street Property;

 

(ii)          restraining the defendants and all persons having notice of the Order from trespassing on the Main Street Property or any part thereof;

 

(iii)         restraining the defendants and all persons having notice of the order from advertising for sale, selling, transferring, alienating, disposing, dissipating or otherwise dealing with the Main Street Property in whole or in part pending determination of the proceedings;

 

(iv)        directing the second and third-named defendants to deliver up to the plaintiff forthwith the keys in respect of the Main Street Property;

 

(v)          directing the second and third named defendants to account to the plaintiff for rent received by them from the tenant of the Main Street Property.

 

3.            I will refer to the first-named defendant as "AIB", the second-named defendant as "Everyday", and the third-named defendant as "Mr. Harper" or "the receiver".

 

4.            The grounding affidavit is extremely lengthy, running to seventy-one pages and two hundred and thirty-seven paragraphs. The exhibits run to several hundred pages. A significant portion of the contents of the affidavit are drawn from documents which the plaintiff obtained on foot of a data access request to AIB in July 2012 and a data access request to Mr. Harper on the 28^th September 2020. Much of the material in the affidavit concerns other parcels of land. These are referred to as "the Mayo Lands" and "4 Church Street". No relief is sought in respect of these other lands but the material and the issues raised in relation to them are part of the background and context for the issues which have to be determined and the plaintiff relies on certain aspects of it to support some of his allegations in respect of the Main Street Property. I have considered all of this material. It is not necessary to refer to it in detail at this stage, though I will make reference to some of it during the course of this judgment. Two affidavits were sworn on behalf of Everyday and the receiver (by a Ms. Margaret Hartigan and by Mr. Harper). Two affidavits were sworn on behalf of AIB (by a Mr. Ian Smith) and two replying affidavits were sworn by the plaintiff.  I have considered all of the contents of these affidavits.

 

5.            The plaintiff raised objections in respect of the affidavits sworn by Mr. Smith and Ms. Hartigan on the basis that they did not exhibit their authority to make their respective affidavits on behalf of the relevant defendant, that Mr. Smith could not have the books and records of AIB in his control and custody, that he did not inspect all the books and records or was not being candid with the Court, and that a director or the secretary of AIB should have made the affidavit, and that several of the averments in Ms. Hartigan's affidavit are hearsay. I am satisfied that these objections are without merit from the point of view of whether I should have regard to these affidavits for the purpose of this application (this is particularly so where the contents of the plaintiff's grounding affidavit are largely drawn from the books and records of the defendants), though they may go to the weight to be given to any particular averment in the event of a dispute.

 

6.            The directly relevant background can be summarised as follows. It is important to note that due to the nature of the grounding affidavit it is, at times, difficult to ascertain what facts are in dispute. However, it became apparent at the hearing that the plaintiff is putting almost everything in dispute or at least is putting the defendants on proof of almost everything; for example, in the written submissions delivered on behalf of the second and third-named defendants, they identify twelve factual matters which they believed were not in dispute but the plaintiff stated at the hearing that he did not accept most of these matters. These included what would appear to be relatively uncontroversial matters, including that the plaintiff borrowed significant sums of money from AIB and that the plaintiff gave a mortgage over the Main Street Property as security. While the plaintiff accepts that he received significant sums of money from AIB, he does not concede that they were given as loans (notwithstanding that he says at paragraph 29 of his grounding affidavit that "In or around November 2003 AIB agreed to offer facilities to assist in the construction of seven apartments and three commercial units on The Main Street Property"). He also accepts that he signed a mortgage document but does not concede that he gave a valid mortgage. The plaintiff explained that he was not conceding matters because he did not want to prejudice his position at the substantive trial. This is not an appropriate way to proceed. It is for an applicant to clearly state what their position is. They can, of course, reserve their rights but it is essential that parties clearly state what their respective positions are so that the Court can decide between the opposing positions. Everyday and the receiver urged that this is no way to approach an application for equitable relief. That is a legitimate point. Nonetheless, I propose to consider the application on the merits, though that is made more difficult by the approach adopted. The determination of any such disputes is a matter for the substantive trial of the action. The following summary should therefore not be taken to amount to findings of fact, though I have tried to identify where there is no dispute.

 

7.            A loan facility for €1,400,000 was extended to the plaintiff by AIB Monaghan town branch by letter of the 28^th November 2003. This replaced an earlier letter of sanction of the 18^th November 2003 which had not been accepted by the plaintiff. The purpose of the facility of the 28^th November 2003 was stated to be to "assist in the construction of seven apartments and three commercial units on site at 32 Main Street Cavan" (this is the Main Street Property). This letter provided in respect of repayment that it was "On demand and at the pleasure of the Bank, subject to clearance in full within 12 months from the net sale proceeds of seven apartments. In the interim, interest will be charged to your working account on a quarterly basis". In respect of security, it provided:

 

"1.   All sums legal charge to be executed by Charles McGuinness over site and 5,000 sq, ft. property thereon at 32 Main St. Cavan, to vest in his name.

 

2.     Assignment to be executed by Charles McGuinness over life policy on his life for €1.5 million minimum to at least cover the term of the facility.

 

Security items 1 and 2 must be in place before drawdown. The Bank's costs and outlay, if any, in taking the security will be advised to you in advance and debited to your account."

 

 

8.            The plaintiff does not appear to seriously dispute that he accepted this letter of sanction, though he does not concede that he did: he makes the point at paragraphs 31 and 32 of his grounding affidavit that he does not recall signing this letter and does not have a signed copy and he also makes the point that he does not necessarily accept that the monies he received were on foot of this facility - he raises a query whether there might have been a further letter of facility which has not been disclosed. He does so on the basis of a report from Bankcheck, described by the plaintiff as a forensic banking company. Of course, the plaintiff should be in position to state whether or not he accepted a different letter of sanction.

 

9.            On the 12^th September 2005, the plaintiff's then solicitor provided an Undertaking to AIB that he would register AIB's mortgage over the Property. It was subsequently registered on the 10^th March 2009.

 

10.        A Deed of Mortgage and Charge of the 11^th November 2005 in respect of the Main Street Property (and another property, 4 College Street, Cavan) was executed by the plaintiff. It was provided as security for all present and future advances made by the First Defendant The plaintiff accepts that he signed this deed but does not accept that there is a valid mortgage. The provisions of the mortgage include:

 

"3.01 The Mortgagor hereby covenants with the Bank on demand to pay to the Bank all moneys and discharge all obligations and liabilities whether actual or contingent now or hereafter due owing or incurred to the Bank by the Mortgagor...

 

8.01 The Bank shall have the statutory powers conferred on mortgagees by the Conveyancing Acts with and subject to the following variations and extensions that is to say:

 

(a)           The secured moneys (whether demanded or not) shall be deemed to become due within the meaning and for all purposes of the Conveyancing Acts on the execution of these presents.

       (b)        The power of sale shall be exercisable without the restrictions on its exercise imposed by Section 20 of the Act of 1881.

        (c)        ...

       (d)        Any receiver appointed by the Bank under the power to appoint a receiver shall be deemed to be the agent of the Mortgagor and the Mortgagor shall be solely responsible for the acts and defaults of such receiver...

 

8.02 At any time or times after the execution of these presents the Bank may without any consent from or notice to the Mortgagor or any other person enter into possession of the mortgaged property or any part thereof or into receipt of the rents and profits of the mortgaged property or any part thereof."

 

11.        It seems that some difficulties arose in relation to the development of the Main Street Property in late 2006/early 2007, including that the contractors left the site and work ceased.

 

12.        A further facility letter was issued on the 1^st June 2007 which, inter alia, provided for the renewal of the facility of the 28^th November 2003 for the purpose of funding "...the construction and completion of 3 commercial units & 7 apartments at Main Street, Cavan." Repayment was stated to be "...on demand and at the pleasure of the Bank subject to capital moratorium till 30/09/2007 or earlier - facility to clear from sale proceeds of 7 apartments from development at 32 Main Street, Cavan. Interest to be met in the interim as it falls due." The security was to be:

 

"1.   All sums mortgage over development at 32 Main Street, Cavan comprising of 7 apartments & 3 commercial units vesting in the name of Charles McGuinness.

 

2.     All sums mortgage over 4 College Street, Cavan vesting in the name of Charles McGuinness."

 

 

13.        Again, while the plaintiff does not concede that he accepted this facility, he does not seem to really dispute that he accepted it. He accepts that a copy which was provided to him on foot of his data access request appears to carry his signature. However, he does raise points about there being different versions of the letter (eg. some carrying handwritten notations and others not) and at paragraph 40 of his grounding affidavit he holds over the possibility that issues will be raised about this letter (and the earlier letter of the 28^th November 2003 and the mortgage of the 11^th November 2005) at the trial. The issues he raises about this letter are addressed at paragraph 17 of the replying affidavit on behalf of AIB.

 

14.        AIB issued a further facility letter on the 18^th December 2008 which provided for a facility of €1,400,000 "to fund the completion of development consisting of 7 apartments and 3 commercial units at 32 Main Street Cavan". It was also stated to be repayable on demand. It stated that it was "Repayable on demand and at the pleasure of the bank subject to capital moratorium for 3 months with review by 17/03/2009. Interest to be met in the interim as it falls due." Unlike the earlier letters of sanction, it did not provide for clearance of the facility from the proceeds of sale of the seven apartments. This is a key difference and a central part of the plaintiff's arguments. The security was stated as follows:

 

"1.   AIB Bank All Sum Mortgage dated 12/09/2005 over 32 Main Street Cavan comprising of 7 apartments & 3 Commercial units vesting in the name of Charles McGuinness.

 

2.     AIB Bank All sums mortgage dated 12/09/2005 over 4 College Street Cavan vesting in the name of Charles McGuinness

 

3.     Assignment over AIB Eur Bond No GK8225d to be provided in the amount of EUR125,000 in the name of Charles McGuinness."

 

 

15.        This letter is one of the central issues in the plaintiff's application. The plaintiff does not deny the issuance of this letter. However, unlike the other letters of sanction, in respect of which he puts the defendants on proof and reserves the possibility of raising issues at trial, he explicitly states that he did not agree to this letter's terms and did not sign the letter. He states that the signature on the signed version which subsequently emerged is not his signature and is a forgery. Neither party referred to the fact that the letter refers to a mortgage of the 12^th September 2005. It seems likely that this was an error and arises from the date of the Solicitors' Undertaking.

 

16.        The plaintiff has never denied receiving moneys from AIB. Indeed, such an assertion would be inconsistent with the substance of his affidavits. He does not, however, concede such moneys were given as a loan.

 

17.        On the 9^th January 2009, the plaintiff assigned the policy at number 3 of the required security in the letter of the 18^th December 2008 (an Ark Life Policy) to AIB but he says that he did not sign the letter of sanction because there were still some terms to be agreed.

 

18.        On the 16^th March 2009, the loan facility was frozen by AIB. On the 22^nd June 2009, the plaintiff was informed that the loan in relation to the Main Street Property was being called in.

 

19.        It seems that the development was subsequently completed by the plaintiff without funding from AIB.

 

20.        There was extensive correspondence and interactions between AIB and the plaintiff and his solicitor between 2009 and 2012, during which the debt recovery process appears to have been on hold. During this period, the plaintiff made the data access request to AIB and he says that it was when he was reviewing the documents provided that he noticed the letter of the 18^th December 2008 on which he claims his signature has been forged. He also noticed a letter in respect of the Mayo lands on which he says the borrowers' signatures are forged (he had bought these lands with three other individuals). The correspondence and interactions, including with the solicitor for AIB, continued from 2013 to 2016. In the later correspondence, ie. post the data access request, he repeatedly raised the allegation that his signature on the letter of the 18^th December 2018 was a forgery. AIB took the position that there were no irregularities in the letter of sanction.

 

21.        On the 23^rd May 2013, Ark Life Assurance informed the plaintiff that they had surrendered the Ark Life policy and sent the proceeds to AIB.

 

22.        On the 7^th June 2013, AIB demanded payment of the Main Street Facility. A further letter of demand was sent on the 1^st June 2016. The plaintiff does not dispute that he received this letter. Indeed, he replied to it, making the point that the facility had been the source of much discussion with the Bank and that they were not entitled to enforce the loan because his signature was a forgery.

 

23.        On the 23^rd May 2018, the plaintiff was informed that AIB was selling the loan and security in relation to the Main Street Property. He took issue with their entitlement to do so, partly on the basis that the "...Mortgage and Charge loan facility documents in relation to these accounts were not executed by me and are forgeries..." He was subsequently informed on the 8^th August that the sale had completed and that AIB had transferred all rights, title, interest and benefits on foot of, inter alia, the Main Street Facility and the Main Street Mortgage to Everyday on the 2^nd August 2018. The plaintiff does not accept the validity of this transfer. However, this was not pushed as a basis for this application. I therefore proceed on the basis that the loan and the security were assigned to Everyday. Whether or not this is the case will have to be determined in the substantive proceedings.

 

24.        On the 6^th March 2020, Link Asset Services, on behalf of Everyday, wrote to the plaintiff in relation to what it described as "€1,400,000 facility (the "Facility") made available to Charles McGuinness (the "Borrower") by Allied Irish Banks plc (the "Bank") pursuant to the terms of a facility agreement dated 18^th December 2008 (as may have been amended from time to time) (the "Facility Agreement") and the security provided as security for the repayment of the Facility (the "Security")". It noted that the facility is repayable on demand and called in repayment within seven days. The balance stated to be outstanding as of the 19^th February 2020 was €1,226,047.80.

 

25.        On the 17^th September 2020, Everyday appointed Mr. Harper, of Grant Thornton, as receiver over the Main Street Property by Instrument of Appointment of Receiver. It stated, inter alia:

 

"IN PURSUANCE of the contractual powers contained in the Security Document EF DAC HEREBY APPOINTS Damien Harper to be receiver over all of the assets referred to, comprised in and charged by the Security Document and to enter upon and take possession of same in the manner specified in the Security Document and the Receiver shall have and be entitled to exercise the powers conferred on him by the Security Document and by law."

 

 

26.        The "Security Document" was identified in the Schedule as the Deed of Mortgage of the 11^th November 2005 in respect of the Main Street Property.

 

27.        Everyday and the receiver claim the plaintiff was informed of the appointment of the receiver by letter from Grant Thornton of the 23^rd September 2020. The plaintiff states that he did not receive the notification at that time. He says that he received it under cover of another letter of the 2^nd February 2021 as part of an exchange of correspondence. He was, however, aware through one of his tenants of Mr. Harper's appointment from the 26^th September 2020. Indeed, the plaintiff sent a data access request to Grant Thornton in late September 2020 and then wrote a number of letters to Mr. Harper over the following months.

 

28.        That tenant was informed of the appointment of the receiver by a property management company on the 24^th September 2020.

 

29.        There was extensive correspondence and interactions between the plaintiff and Grant Thornton and several letters from the plaintiff to Mr. Harper including letters to Mr. Harper's home address. One of the complaints raised by the plaintiff was that Mr. Harper did not personally reply to this correspondence.

 

30.        It seems that the receiver changed locks in the Property in late December 2020 without the plaintiff's consent. The plaintiff claims that the receiver caused damaged in doing so.

 

31.        On the 23^rd April 2021, the plaintiff became aware that part or all of the Main Street Property was being advertised for sale by auction on the 14^th May 2021. It is unclear when the property was first advertised. In the documents bundle which was made available online by the estate agents was the mortgage of the 11^th November 2005 and a draft contract for sale.

 

32.        The plaintiff wrote to the defendants on the 26^th April 2021 stating:

 

"...Without prejudice that there is no mortgage in relation to the within mentioned property, no power of sale by any of you, your servants or agents exists for several reasons, including but not limited to the facts that:-

 

1.     As I have not consented in writing to the taking of possession by any mortgagee within the prescribed time and as no application to the court has been made seeking an order for possession, the taking of possession of the within mentioned property is an illegal act.

 

2.     The terms within the facility that is being relied upon are not terms that I agreed to, I did not sign this facility and it is a forgery.

 

3.    A defeasance of my estate has not taken effect..."

 

 

33.        The letter called on the recipients to confirm that they would cease advertising or offering the Property for sale, failing which appropriate steps would be taken.

 

34.        It seems there was no reply and the plaintiff instituted these proceedings and registered a lis pendens.

 

35.        As noted previously, the plaintiff had other facilities with AIB through the Monaghan town branch. These included facilities in respect of a property at 4 Church Street, Cavan, and lands in Co. Mayo which he owned with three other individuals. A different receiver was appointed over these parcels of land. In respect of the Co. Mayo lands, a facility letter issued on the 3^rd November 2008. The plaintiff also claims that he did not sign this and that his signature is a forgery. He also claims that the signatures of the other three individuals are forgeries.

 

36.        Against that background, the plaintiff claims the interlocutory reliefs set out above.

 

37.        The plaintiff claims that during the course of these proceedings (in December 2021/January 2022) the receiver changed another lock and caused damage.

 

 

APPLICABLE PRINCIPLES

 

38.        The general principles applicable to an application for an interlocutory injunction are well-established. They were set down in Campus Oil v Minister for Industry and Energy (No. 2) [1983] IR 88), were restated in Okunade v Minister for Justice & Ors [2012] 3 IR 152 and were recalibrated by the Supreme Court in Merck Sharpe & Dohme v Clonmel Healthcare [2019] IESC 65 where O'Donnell J set out an eight step approach.

 

39.        The second step in Merck Sharp & Dohme v Clonmel Healthcare, i.e., whether a fair question has been established, is often described as a "threshold" test in the sense that if the applicant does not reach that threshold then he is not entitled to an injunction and the Court does not need to consider how matters should be arranged pending trial, including  the balance of convenience and the adequacy of damages.

 

40.        Where the relief sought is mandatory in nature, the threshold test is higher. In Maha Lingham v Health Service Executive [2005] IEHC 186, Fennelly J held that an applicant for mandatory relief must establish "a strong case that [they are] likely to succeed."

 

41.        The first two reliefs sought by the plaintiff are cast in prohibitory terms. However, in circumstances where Everyday/the receiver have gone into possession, the reliefs at paragraphs 1 and 2 of the motion are in fact mandatory in nature. The reliefs at 4 and 5 are expressly mandatory in nature. Thus, in order to obtain these reliefs, the plaintiff has to satisfy the higher test. The relief at paragraph 3, restraining the sale, is prohibitory. For the purpose of the following discussion, I have focused on whether the plaintiff has satisfied the higher test in respect of the grounds of challenge though I also consider, where necessary, whether he has satisfied the fair question to be tried test.

 

 

FAIR QUESTION TO BE TRIED AND STRONG CASE

 

42.        It is somewhat difficult to distil precisely the issues on which the plaintiff claims that he meets the threshold test (either a fair question or a strong case) for an interlocutory injunction. This is because there are several layers to his complaints in the proceedings. At the hearing he said the fair question is that he has been treated incorrectly by AIB in respect of the Main Street Property and the other properties. Such a general assertion can not ground an application for an interlocutory injunction.

 

43.        However, I think it is correct to say, based on paragraph 8 of the plaintiff's written submissions and the substance of his submissions at the hearing, that the core issues upon which he relies at this stage are as follows.

 

44.        Firstly, that the terms of the letter of sanction of the 18^th December 2008 were not accepted by him and the signature on it which purports to be his signature is a forgery; Everyday (and AIB) has relied on this letter of sanction to call in the loan, demand payment and to appoint the receiver and were not entitled to do so. Part of this argument is that he was not in default because the governing repayment terms were those prescribed by the letter of sanction of the 28^th November 2003 and this only required repayment from the sale of the seven apartments. However, his position on this is sightly contradictory because he also stated at the hearing that he is not in fact bound by either the letter of the 28^th November 2003 or the 1^st June 2007. His basis for this position is three-fold: that there is the possibility that there was a different letter of sanction altogether; that if the letter of the 18^th December 2018 falls then AIB and their successors have lost any rights they have against him due to their conduct and he has no obligation to repay the moneys; and that the defendants can not rely on the letter of the 1^st June 2007 because, while he may have signed it, the copy the Bank has does not have his signature.

 

45.        Secondly, leaving aside the question of the invalidity of the letter of the 18^th December 2008, Everyday and Mr. Harper were not entitled to enter into possession of the Main Street Property or to offer it for sale without either the plaintiff's consent or a Court Order.

 

46.        Thirdly, Everyday/Mr. Harper effected forcible entry to the Property, causing damage, so even if they were entitled to take possession they did so unlawfully.

 

47.        Fourthly, that the Property is being sold at an undervalue.

 

48.        The plaintiff has also claimed that the mortgage of the 11^th November 2005 is invalid, that the transfer to Everyday is invalid and that the appointment of the receiver is invalid because it was not effected by Deed. However, the plaintiff made clear that he was not asking the Court to determine whether he had a fair question on either of these points.

 

 

Case against AIB

 

49.        I propose to address each of these in turn. Before doing so I will address the application against AIB. There is no basis on which interlocutory relief can be granted against AIB. It is stated on affidavit that AIB's interest in the facility and the security was transferred to Everyday on the 2^nd August 2018. The receiver was appointed by Everyday. That receiver offered the lands for sale. AIB has stated on affidavit that it considers itself to have no interest in the Property and that it has not and does not seek to interfere with, come upon or otherwise trespass on the Property. Indeed, the plaintiff has not asserted that AIB is trying to sell or trespass on the lands. There is simply no evidence that AIB is attempting to do anything which requires to be restrained. The furthest the plaintiff goes is to say that they might attempt to do so. That is not sufficient. Kirwan on "Injunctions" noted:

 

"It is important to remember that a key principle of quia timet injunctions is that "no one can obtain a quia timet order by merely saying "timeo", or "I fear", and that the courts will have regard to various principles before determining whether or not to grant such an injunction""

In Szabo v Esat Digifone [1998] 2 ILRM 102, Geoghegan J accepted that an applicant has to establish a "proven, substantial risk of danger".

50.        The plaintiff has obviously raised issues against AIB in the substantive proceedings but there is no basis for an interlocutory injunction against AIB at this stage and I therefore refuse the relief against AIB. Of course, if AIB do seek to exercise any purported rights in respect of the Property the plaintiff can make an application for relief based on those facts.

 

 

Letter of the 18^th December 2008

 

51.        The first issue to be determined in relation to the case in respect of the letter of sanction of the 18^th December 2008 is whether the plaintiff has satisfied the threshold test - that there is a fair question or a strong case that he did not accept the terms and that the signature on the letter is not his signature. I am satisfied that he has established a strong case that he is likely to succeed (and therefore a fair question) for the following reasons.

 

52.        The evidence at this stage is that the plaintiff had a meeting with two bank officials in AIB Monaghan Town branch on the 9^th January 2009 (following the issuing of the letter of sanction). It was at this meeting that the plaintiff assigned the Ark Life policy, as required by the letter of the 18^th December. I return to the relevance of this assignment shortly. In the documents provided to the plaintiff by AIB on foot of his data access request, there is internal correspondence in respect of the terms of the letter of the 18^th December. That letter provided for the applicable interest rate and an arrangement fee. The first internal email (on the 9^th January 2009) stated:

 

"...He has been in with myself and enda this morning requesting we look at rate as he has gone from 4.125 to now 5.961 which is only 2% but he not happy. Myself and enda were also looking at an arrangement fee of 5k foar him which he has balked. Would we look at 1.75% with arrangement fee of 2k, or alternatively 1.85% with no fee..." (sic)

 

53.        On the 12^th January 2009, there was an email stating:

 

"Suzanne sent me a mail saying that she had been speaking to you in relation to holding the rate on Charlie McGuinness. She also mentioned to me that there were other conditions that you wanted to discuss. Can you send me a mail with these details, and I will bring them up the line for you."

 

54.        There is no evidence before me as to where these discussions ended up but on their face, these emails indicate that there was still active discussion in respect of some of the terms. This supports the plaintiff's assertion that he did not agree the terms contained in the letter of the 18^th December 2008.

 

55.        In respect of the signature, it is relevant that the plaintiff has consistently asserted since 2012 that he did not sign the letter of the 18^th December 2008.

 

56.        Furthermore, the plaintiff has obtained a report of a forensic document examiner. That examiner concluded, inter alia:

 

"10.  All of the documents in this case have been examined in the form of copies rather than original copies. With respect to the specimens, most of the copies are of a reasonable quality and are suitable for examination. However, the copy of the disputed Letter of Sanction is of poor quality and does not show all the fine detail of its original. This has limited my examination to some extent.

...

13.   This signature differs markedly from the specimens of Mr. McGuinness. I have considered the possibility that Mr. McGuinness has a longer version of his signature where he writes his name in full rather than just a shortened version consisting of what appear to be initials. I have found that there are differences in the formation of individual characters within this signature and Mr. McGuinness' handwriting. These differences could not be explained by factors such as normal natural variation in his signature, an unusual writing position, or Mr. McGuinness' health. Mr. McGuinness did not write the questioned signature in his normal style of handwriting.

...

15.   I have considered the following possible explanations for my findings:

·          Charles McGuinness wrote the questioned signature in a deliberately disguised style.

·          Some other person was responsible making no (sic) attempt to copy Mr. McGuinness' signature.

16.   It is difficult to be certain exactly how any individual would write their signature if they were to deliberately attempt to disguise it, so such a possibility cannot be excluded. However, in my opinion, these findings provide some limited evidence that Mr. McGuinness was not responsible. That is, I consider it more likely that some other person wrote the questioned signature rather than Mr. McGuinness signed it deliberately disguising his signature.

...

18.   The questioned signature in the name Charles McGuinness on the Letter of Sanction dated 18^th December 2008 differs from his specimens and is not a normal genuine signature written by him. The handwritten date associated with this signature also differs from his handwriting.

19.   I cannot exclude the possibility that he completed it deliberately disguising his signature but, in my opinion, there is some limited evidence that he was not responsible."

 

57.        I think it is fair to say that this expert's opinion is somewhat qualified. Nonetheless, it does provide objective evidence which supports the plaintiff's assertion that he did not sign the letter.

 

58.        It is also relevant that this expert examined the other letter of sanction (of the 3^rd November 2008) in respect of the Mayo Lands and concluded that the signatures of the four borrowers (including the plaintiff) differ from their specimens and are not normal genuine signatures written by them.

 

59.        AIB did not adduce any positive evidence of the plaintiff having signed the letter. Mr. Smith, on behalf of AIB says at paragraph 32 "I believe that the performance by both parties of the various terms of the facilities is indicative of their acceptance and that the inconclusive nature of the expert reports is such that this Honourable Court should look to the undeniable facts of this case." Ms. Hartigan, on behalf of Everyday and Mr. Harper says that the plaintiff's allegation that his signature was forged is "a serious allegation and the Second Defendant will liaise and co-ordinate with the First Defendant, insofar as necessary or appropriate, with any enquiries relating to this allegation...However, I believe and am advised by the solicitors and counsel for the Second Defendant that, even if the allegation of forgery were to be accepted or upheld at the trial of these proceedings the Plaintiff would not be entitled to permanent injunctive relief." Both sets of defendants accept in their written submissions that there is a fair question about the signature.

 

60.        The plaintiff also relies on a statutory declaration made by him on the 3^rd October 2019 in which he declared that he did not sign the letter of the 18^th December 2008 and the signature which purports to be his is not in fact his signature. He submits that because this was not contradicted by the defendants, they have accepted that he did not sign the letter. He relies on section 59(1) of the Land and Conveyancing Law Reform Act 2009. In my view, this is not a correct understanding of the section.

 

61.        The plaintiff also pointed to the fact that in a letter of the 9^th July 2013, the Chief Executive Officer of AIB referred to the monies loaned to the plaintiff "on foot of the Letter of Sanction dated 28^th November 2003..." and not to the letter of the 18^th December 2008. The plaintiff submits that this is an acknowledgement by the CEO that AIB could not rely on the letter of the 18^th December 2008. I do not accept this. Firstly, from the Bank's perspective, that facility was the originating facility so it is understandable that reference would be made to it. Secondly, the CEO was replying to a letter from the plaintiff in which the plaintiff referred to the letter of the 28^th November 2003 and relied on the repayment terms in that letter.

 

62.        What must be weighed against the factors supporting the plaintiff's claim that he did not accept the terms and did not sign the letter is the fact that the plaintiff assigned his interest in the Ark Life Policy to AIB on the 9^th January 2009. This was one of the items of security required by the letter of the 18^th December. This undoubtedly suggests that the plaintiff accepted the terms of the letter. However, it may also simply suggest that the plaintiff was going to agree to that term irrespective of where the parties ended up with the other terms. Thus, it seems to me that it does not outweigh the other factors. This may be of greater significance if the plaintiff had drawn down further moneys after the letter of the 18^th December 2008 but that does not appear to be the case.

 

63.        I am therefore satisfied on the basis of the evidence as it currently stands that the plaintiff has established a  strong case that he is likely to succeed in his claim that he did not accept the terms in the letter of the 18^th December 2009 and did not sign it.

 

64.        However, that does not determine the matter. Everyday and Mr. Harper submit that this does not, in itself, satisfy the threshold test because whether or not the plaintiff's signature was forged or he accepted the terms in the letter, he did in fact  borrow moneys, has a general liability to repay them, and is bound by the terms of the June 2007 or the November 2003 sanction letters. Everyday and Mr. Harper advance this as a basis for saying that the plaintiff would not obtain a permanent injunction at trial and for saying that the plaintiff has not satisfied the threshold test. I deal with this in a moment.

 

65.        Part of the plaintiff's case in respect of these letters is that if he is not governed by the 2008 letter then he was (and is not) in default because the earlier letters provided that the loan would be cleared from the proceeds of sale of the seven apartments. This provision for repayment was not included in the 2008 letter.

 

66.        I do not accept that there is a strong case (or a fair question) that the 2007 and 2003 letters only provided for repayment from the proceeds of sale of the seven apartments. This interpretation of the letters disregards the express language of those letters, both of which provided for payment on demand.

 

67.        Everyday and Mr. Harper rely on a number of points and authorities to submit that there is no basis for the contention that the plaintiff's non-signature of the 2008 letter renders the facility irrecoverable, i.e. they submit that he is in any event required to stay.

 

68.        Firstly, it is submitted that there is no general requirement that a contract to lend money must be evidenced in writing for it to be enforceable (see Baker J in Bank of Ireland Mortgage Bank v Murray [2019] IEHC 234).

 

69.        Secondly, even if the 2008 facility never took effect, this would not absolve the plaintiff of his liability to repay. In IBRC v Cambourne Investments Incorporated [2014] 4 IR 54, Charleton J held that the borrower was not bound by a facility letter (due to the failure of a condition precedent) but nonetheless the loan was:

 

"...otherwise recoverable because Cambourne agreed to borrow the money and Anglo agreed to lend it. As a matter of law, Cambourne is obliged to repay the money borrowed. There is no warrant for construing into the relationship between the Anglo and Cambourne any entitlement other than an ordinary obligation to repay the money."

 

70.        In ACC Bank plc v Deacon [2013] IEHC 427, Ryan J said in relation to an application for summary judgment that:

 

"This case is about the proof of a series of loan agreements, not whether the bank has proved a particular, individual document. Documents are evidence of the agreements and their terms. But it is a misunderstanding to think that the case is about proof of a document and not proof of an agreement.

 

It is about loan agreements and their terms and whether they were breached. Has the bank proved that it lent the money to Mr. Deacon on the terms stated in the facility letters? The bank can prove the agreement by oral evidence and copy documents to show what was agreed between the parties."

 

71.        I accept these as general principles insofar as they go. However, the plaintiff's case is not limited to saying that he did not sign the letter - he claims that he did not accept the terms and that his signature was forged.

 

72.        Everyday and Mr. Harper relied on ACC Bank plc v Fahey [2010] IEHC 41. Kelly J held that the borrowers were obliged to repay the amounts advanced to them notwithstanding that it was not disputed that the signatures of two borrowers on the loan facility letter had been forged. However, this case is of limited assistance. It was a claim for summary judgment on foot of a loan. It was not to enforce security. More importantly, on the morning of the hearing the Bank dropped its claim for interest on foot of the sanction letter and limited the claim to the amount which had been advanced to the defendants because the bank could not stand over the sanction letter and the relevant defendant accepted that the bank lent him the money and, most importantly, that he was obliged to repay it.

 

73.        In any event, the issue for these defendants is that Everyday has chosen to expressly rely on the letter of the 18^th December 2008. As noted above, Link Asset Services sent a letter of demand on the 6^th March 2020. It was expressly written in relation to "the terms of a facility agreement dated 18^th December 2008...". It noted that the facility was repayable on demand and demanded payment of the full amount within seven days, failing which Everyday would exercise all or any of its rights to enforce the security, including the appointment of a receiver. This led to the appointment of the receiver on the 17^th September 2020. Earlier letters of demand from AIB similarly relied on and made express reference to the facility of the 18^th December 2008. On the 7^th June 2013, AIB demanded payment of the Main Street Facility. This letter of demand was headed - "Re: Letter of Sanction dated 18^th December, 2008 (the "Letter of Sanction")...pursuant to which the following facilities were made available by the Bank to the Borrower; Loan Account Sort Code...Account Number ... Account Balance €1,152,488.51 Dr". A further letter of demand was sent on the 1^st June 2016. This was headed "Allied Irish Banks, p.l.c. (the Bank) made the following facility available to the Borrower pursuant to Facility Letter dated 18^th December 2008" and in the body of the letter it stated "Pursuant to the terms of the Facility Letter, the Facility is repayable on demand..." Everyday chose to expressly rely on the letter of the 18^th December 2008. That being the case, where there is a strong case that there was not agreement on the terms contained in the letter and that the plaintiff did not sign the letter then there must be a fair question or strong case that Everyday and Mr. Harper are not entitled to rely on it and that steps taken on foot of them are wrongful.

 

74.        To be clear, I do not accept that the plaintiff has established to either standard that if the 2008 letter is invalid on the basis of fraud that it follows that he has no obligation to the defendants. The evidence suggests that the moneys were advanced before the 2008 letter and thus the obligation to repay pre-dates the alleged misconduct. Even if the plaintiff was correct that he was wrongfully forced into default by the change in repayment terms that would not remove any obligation to repay the moneys but rather would give rise to a separate cause of action for damages.

 

75.        However, what is at issue is whether the defendants are entitled to enforce the loan and security in reliance on the letter of the 18^th December 2008 and I am satisfied that there is a strong case that they are not entitled to do so. That does not mean that the plaintiff no longer has an obligation to pay or that the defendants have no right to otherwise seek to enforce that obligation.

 

76.        The fact that the defendants may be able to rely on the general liability to repay or on another facility letter seems to me to be an important factor in the assessment of the balance of convenience or balance of justice and I return to it below.

 

Entitlement to take possession

 

77.        Secondly, the plaintiff submits that even if the letter of the 18^th December 2008 is valid, Everyday and Mr. Harper were not entitled to enter into possession of the Main Street Property or to offer it for sale without the plaintiff's consent or a Court Order. He relies on section 97(1) and 100(2) of the Land and Conveyancing Law Reform Act 2009 which, he submits apply in this case. I am satisfied that the plaintiff has not established a strong case or a fair question to be tried on this point.

 

78.        Section 97 provides:

 

"(1)  Subject to section 98, a mortgagee shall not take possession of the mortgaged property without a court order granted under this section, unless the mortgagor consents in writing to such taking not more than 7 days prior to such taking.

 

(2)   A mortgagee may apply to the court for an order for possession of the mortgaged property and on such application the court may, if it thinks fit, order that possession be granted to the applicant on such terms and conditions, if any as it thinks fit."

 

79.        Section 100 provides, inter alia:

 

"(1)  Subject to subsection (3) and sections 101 to 107, a mortgagee or any other person for the time being entitled to receive, and give a discharge for, the mortgage debt may sell or concur with any other person in selling the mortgage property provided –

(a)   Following service of notice on the mortgagor requiring payment of the mortgage debt, default has been made in payment of that debt, or part of it, for 3 months after such service, or

(b)   Some interest under the mortgage or, in the case of a mortgage debt payable by instalments, some instalment representing interest or part interest and part capital is in arrears and unpaid for 2 months after becoming due, or

(c)   There has been a breach by the mortgagor, or some person concurring in the mortgage, of some other provision contained in the mortgage or any statutory provision, including this Act, other than a covenant for payment of the mortgage debt or interest,

and provided in each such case 28 days' notice in the prescribed form has been served on the mortgagor warning of the possibility of such sale.

(2)   The power of sale shall not become exercisable without a court order granted under subsection (3), unless the mortgagor consents in writing to such exercise not more than 7 days prior to such exercise.

(3)   At any time after expiration of the 28 days' notice given under subsection (1), a mortgagee may apply to the court for an order authorising exercise of the power of sale and on such application the court may, if it thinks fit, grant such authorisation to the applicant on such terms and conditions, if any, as it thinks fit..."

 

80.        Thus, if the relevant parts of these sections apply then the defendants require either consent or a court Order.

 

81.        However, section 96 provides that the powers and rights of a mortgagee under sections 97 to 111 apply to a mortgage created by deed after the commencement of Part 10 Chapter 3. It also provides that the powers and rights conferred by Chapter 3 take effect subject to the terms of the mortgage, except where Part 10 provides to the contrary.

 

82.        The commencement date was the 1^st December 2009. The mortgage in question pre-dated that, having been executed on the 11^th November 2005.

 

83.        The plaintiff relies on Baker J's decision in Bank of Ireland Mortgage Bank v Cody [2021] IESC 26 to argue that sections 97 and 100 apply and there was therefore no power to take possession or power of sale without the consent of the plaintiff or a court Order.

 

84.        In Bank of Ireland v Cody, Baker said at paragraph 40:

 

"40.  A charge of registered land can carry an express right to possession as was found in Gale v First National Building Society [1985] IR 609 where Costello J upheld the right of an owner of a charge to enter into possession on foot of a contractual licence by which it was entitled to take possession on default of payment and subject to a proviso that the power did not become exercisable unless a default had occurred for three months. Many modern charges do contain a right to possession but, as no estate or interest passes, no right to take or be in possession without court order exists at common law and none was created by the scheme of the 1964 Act, or by the previous Registration of Title Act 1891 and the amending legislation. The charge registered against the folio of Mr. and Ms. Cody does contain a contractual right to take possession on default, but a court order is now required by reason of s.97(1) of the Act of 2009, which provides that a mortgagee may not take possession of mortgaged property without a court order, except with the written consent of the mortgagor." [emphasis added]

 

85.        However, Baker J was not considering the question of whether section 97(1) applies to a mortgage created prior to the 1^st December 2009. She summarised the issues arising in that case at paragraph 13 of her judgment. The above discussion is contained in a section entitled "Historical Context".

 

86.        This issue was directly addressed by Clarke J in ACC Bank plc v Kelly [2011] IEHC 7. He said at paragraph 9.2 and 9.3 of his judgment:

 

"9.3  Mr. Kelly went on to argue that the receiver was precluded from seeking to go into possession of any of the properties by reason of the provisions of the Land and Conveyancing Law Reform Act 2009 (the "2009 Act"). Chapter 3, Part 10 of the 2009 Act provides for obligations, powers and rights or mortgagees. There is no doubt but that s.97, which is part of that Chapter, precludes a mortgagee from taking possession without a court order save in the case of consent. There may well be a question as to whether s.97 precludes a receiver from going into possession assuming the receiver to have been validly appointed. However, that question does not arise in this case for s.96 of the 2009 Act is clear in its terms. Section 96(1)(a) specifies that the powers and rights of a mortgagee under all of the remaining sections of Chapter 3 (including s.97) apply to "any mortgage created by deed after the commencement of this Chapter". The 2009 Act did not come into force until the end of that year. The 2009 Act, therefore, significantly post-dated the mortgage in this case. Therefore, s.97 had no application to the mortgage in this case...

 

9.3   The legal position is clear. There was no barrier to the mortgagee going into possession under a mortgage provided that the necessary conditions to allow for such possession (in almost all cases a breach of the mortgage terms) had occurred, without a court order, until the passage of the 2009 Act. That Act is not retrospective and does not apply to mortgages then already in existence. Therefore, there would be no barrier to ACC going into possession of the properties, the subject of the mortgage in this case, without a court order. Even if, therefore, the section can be construed as affecting the right of a receiver to go into possession where that receiver is appointed by a mortgagee, no barrier would exist to a receiver going into possession on the facts of this case."

 

 

87.        Edwards J also addressed this point in the Court of Appeal in O'Neill v Davey [2020] IECA 76, though it is clear that his comments were obiter. He said:

 

"53.  ...the allegation of non-compliance with s.97 of the Land and Conveyancing Reform Act 2009 (the Act of 2009) was not raised in the Court below...In circumstances where the point was not raised in the court below, and no explanation for the failure to do so has been offered, I do not consider that this Court should now be prepared to entertain it. In any event, the point would appear to be misconceived because, as the respondent has pointed out in written submissions filed on this appeal, s.97 of the Act of 2009 (even if applicable in the case of a receivership, which the respondent does not concede) only applies to a mortgage created by deed after the commencement of Chapter 3 of the Act of 2009. Chapter 3 was commenced on the 1^st of September 2009, whereas the appellant's mortgage long pre-dates that..."

 

88.        The plaintiff submits that the time limitation in section 96, i.e. to mortgages post-dating the commencement date, only applies to the powers and rights of a mortgagee under such mortgages and the relevant portions of section 97(1) (and section 100(2)) deal with obligations of a mortgagee rather than rights and powers. Thus, he argues that the obtaining of consent or a court Order are obligations and are therefore not effected by the limitation in section 96. This means that Everyday could not lawfully take possession without a Court Order or his consent. The plaintiff relies on Finnegan J's judgment in Dellway Investments Limited & Ors v NAMA & Ors [2011] IESC 14. Finnegan J said:

 

"The LCLR Act imposes restrictions on a mortgagee in sections 96(1)(c), 97(1), 99, 100(2) and 108. Thus under section 96(1)(c) the powers and rights of a mortgagee under Part 10 do not become exercisable unless their exercise is for the purpose of protecting the mortgaged property or realising the mortgagee's security. Under section 97(1) a mortgagee may not take possession of the mortgaged property without a court order or the consent in writing of the mortgagor. Prior to the enactment of section 97 a mortgagee could take possession without a court order or consent if it could do so peaceably: Gale v First National Building Society [1985] IR 609. The right was very rarely exercised. NAMA, unlike any other mortgagee, retains a right to take possession peaceably. Section 99 requires a mortgagee in possession, or after a receiver has been appointed a receiver, to take steps within a reasonable time to exercise the power of sale, or if it is not appropriate to sell, to lease the property. Section 100 requires the mortgagee to give notice to the mortgagor prior to the exercise of the power of sale and section 108 requires notice prior to exercise of the power to appoint a receiver. As these sections may be excluded by the mortgaged terms and will frequently be so excluded, and as the court has no knowledge of the terms of the appellant's mortgages, it is not possible to say whether or not the release of NAMA from the operation of the sections will in fact affect the appellants."

 

 

89.        I do not believe the plaintiff has established a strong case or a fair question to be tried on this point. Clarke J, in ACC Bank v Kelly, identified that Chapter 3, Part 10 of the 2009 Act provides for obligations, powers and rights or mortgages but nonetheless held that the "Act is not retrospective and does not apply to mortgages then already in existence." He did not hold that the Act is retrospective in respect of "obligations" but not rights or powers. though, it has to be said, he does not expressly deal with this point. This is readily understandable because the question of obligations, rights and powers are in fact entirely intertwined. The relevant "obligations" are more properly seen as restrictions on or preconditions to the proper exercise of the rights and powers. That is readily apparent when one considers the historical context. Prior to the commencement of the relevant part of the 2009 Act, a mortgagee had a right to go into possession (subject to conditions); the effect of the commencement of that Act is to restrict that right to where the consent of the borrower is obtained or a court Order is made. Thus, in my view, it is incorrect to say that these sections provide for separate and disctinct "obligations" and rights and powers.

 

90.        In any event, even if the Act applies, its application is subject to the terms of the mortgage (it is not a "housing loan mortgage").

 

91.        I am therefore not satisfied that the plaintiff has established a strong case or a fair question that the defendants required the plaintiff's consent or a court Order to go into possession or to offer the Property for sale.

 

Forcible entry

 

92.        The plaintiff's position in relation to possession of the Property was somewhat unclear until near the end of the hearing. In his affidavits, he alleges that locks were changed on the Property and appears to imply that Everyday or the receiver took possession. He certainly says that the changing of the locks was forcible and caused damage and was therefore wrongful. However, at paragraph 13(1) of his written submissions, he says "The plaintiff is the owner in possession of The Main Street Property..."; and at paragraph 18(1) "The Plaintiff is in possession of the Main Street Property...". Indeed, the same lack of clarity is evident from the relief sought in the Notice of Motion. At paragraph 1 of the Notice of Motion he seeks an Order restraining the defendants from, inter alia, taking possession of the Property and at paragraph 2 he seeks an Order restraining them from trespassing on the Property, which suggests that he was claiming that the defendants had not yet gone into possession, while at paragraph 4 he seeks an Order directing them to deliver up the keys in respect of the Property, which suggests that he accepts that they are in possession. However, the lack of clarity was resolved at the hearing when the plaintiff explained that Everyday and Mr. Harper are in physical possession but it is his position that he is in legal possession. I therefore proceed on the basis that the defendants are in possession and that it is the plaintiff's claim that they did not take possession peaceably.

 

93.        The evidence in relation to the defendants taking possession is as follows. The plaintiff says that he visited the Property on the 12^th December 2020 and two locks on two external apartment doors had been changed and the front door of the retail unit had been damaged. The plaintiff says that his tenant told him that two people who he believed were representing the property management company engaged by the receiver had changed the locks and damaged the front door. He exhibited a photograph of the front door which showed damage and a quote for repairs and the replacement of the locks. That these people carried out the works on behalf of the receiver is not denied (though the damage is). In the third affidavit of the plaintiff, in which he recounted a meeting that he had with a former tenant of the retail unit, the plaintiff says that when he met the former tenant (the tenancy having expired on the 31^st December 2021) on the 4^th January 2022:

 

"3...I became aware that further events of forcible entry occurred in relation to property which forms part of The Main Street Property. Locks on the entrance door to the common area of apartment numbers 4, 5, 6 and 7 and the entrance doors to the said retail unit had been removed and other locks were affixed to these doors on a date or dates in late December 2021, or a date or dates in early January 2022. [The former tenant] was unable to gain access to the said retail unit to remove his stock, fixtures and fittings.

 

4.      Two locks were removed from the entrance door to the said apartments and only one was replaced, resulting in a hole being left visible in the door and an increased security risk pertaining. I am a joiner by trade, and I covered the said hole with timber which I painted the same colour of the said door..."

 

94.        This was obviously during the currency of these proceedings.

 

95.        Everyday and Mr. Harper do not address the alleged entry and damage prior to the 12^th December 2020. In respect of the alleged incidents in 2021. Mr. Harper stated in his affidavit that when the retail unit in question was inspected on the 8^th December 2021 it appeared to be vacant and was in a poor state of repair. He also said that the internal configuration and the contents of the unit were not consistent with its alleged use as a retail unit. It looked like it had been vacant for some considerable period of time. He exhibited photographs. I do not follow the reference to the internal configuration and the contents of the unit not being consistent with its use as a retail unit. The photographs show the types of shelves which are commonly used in supermarkets. The photographs do tend to show that the unit was vacant, e.g., the shelves are empty and the unit is in some disarray. Mr. Harper noted the plaintiff's allegation that his agents had forcibly entered the Main Street Property and had caused damage. He denied the allegation that damage was caused but did not deny that they had changed or removed the locks. He explained that his insurance policy required that any receivership properties which fall vacant must be secured appropriately. In this regard he said:

 

"15.  ...On this basis, on 8 December 2021, the locks were changed on both the door to the commercial unit with the Main Street Property and also the communal door to the residential units within the Main Street Property, which also appeared vacant. This was done without causing damage to the fabric of the Main Street Property.

 

16.   Correspondence providing details of my appointment was delivered to each of the aforesaid units while "tape tests" were also employed to establish whether the units were in use. When my agents returned to the Main Street Property on 9 December 2021, the tape was undisturbed, which fortified the conclusion that the units were vacant."

 

96.        These averments in respect of the properties being vacant have not been contradicted by the plaintiff.

 

97.        In Charleton v Hassett [2021] IEHC 746 Allen J had to consider an application by a receiver (the plaintiff) for a series of interlocutory injunctions. In considering the weight to be attached to this judgment, it must, of course, be remembered that it was an interlocutory application. One of the issues which had to be decided was whether the borrower was interfering with the receiver's lawful possession of the property. The evidence was that the receiver's agents had entered the property by removing locks. Subsequently, the borrower changed the locks and the receiver's agents once again changed the locks. Allen J identified the central question as being whether the receiver acted lawfully in the first instance. He said at paragraph 46 that:

 

"...the essential issue is the legal effect of the changing of the locks for the first time on 3^rd March, 2020. If, immediately after that was done, the plaintiff was lawfully in possession of the house, any later interference by the defendant with that possession will have been trespass. If, on the other hand, the plaintiff was not entitled to change the locks, the defendant was perfectly entitled to change them."

 

98.        He went on at paragraphs 57 and 58 to say:

 

"57.  The issue of general importance thrown up by this application is the manner in which a mortgagee - whether by itself or by proxy - is entitled to take possession of the mortgaged property...

 

58.   The rather anodyne description of what was done on 3rd March, 2020 is that the locks on the house and gate were changed. If no one has said so expressly, nevertheless it is quite clear that the Ktech agent did not have the keys to the several locks. The photographs show that the gate is a six bar tubular steel gate with a bolt and a locking hasp. Absent any suggestion that the padlock was picked, it seems to me that the inference is irresistible that it was cut. Similarly, to my mind, the inference is irresistible that the barrels were drilled out of the locks on the outer doors. There is a dispute - to which I will come - as to whether the property the subject of the action is the defendant's "family home" but whether it is or was the defendant's principal residence, the evidence is that it was certainly occupied by him."

 

99.        At paragraphs 62-64, he said:

 

"62.  In the absence of provision to the contrary, a mortgagee of the legal estate in land is entitled to enter the mortgaged property at any time after the execution of the mortgage. The owner of a charge over registered land, by contrast, has no estate in the lands but Gale v. First National Building Society [1985] I.R. 609 is clear authority for the proposition that an express provision in a deed of charge of registered land permitting the registered owner of the charge to take possession in the event of default by the chargor creates a contractual licence between the parties under which the registered owner of the charge may take possession of the property without the necessity of obtaining a court order. However, as Gale makes clear, the registered owner of a charge (or a mortgagee of the legal estate in land) may only lawfully take possession if that can be done peaceably.

 

63.   In Gale v. First National Building Society an auctioneer acting on behalf of a building society took possession of a house which had been vacant for at least 22 months. The report does not disclose exactly or even generally how he took possession, but it does show that the defaulting borrowers had left Ireland and Costello J. (as he then was) was in no doubt that possession was obtained peaceably. In Irish Life & Permanent plc v. Duff [2013] IEHC 43, Hogan J. suggested that Gale might need to be re-examined in the light of Article 40.5 of the Constitution and the contemporary jurisprudence concerning the interpretation of the constitutional protection of the inviolability of the dwelling but on its face, I do not understand Gale to be authority for the proposition that a chargee is entitled to take possession by changing the locks while the householder happens not to be at home.

 

64.   In ILG Limited v. Aprilane Limited [2020] IEHC 420, I expressed scepticism of the argument made in that case that whether an entry is forcible or not might turn on the degree of force used, or the extent of damage done to the property - whether by the drilling, forcing or cutting of locks or whatever. In that case counsel had referred to the decision of Carroll J. in Sweeney Ltd. v. Powerscourt Shopping Centre Ltd. [1984] I.R.501 and a suggestion made repeatedly in articles published in the Conveyancing and Property Law Journal and the textbooks that a landlord is entitled to take such steps to effect a reentry as would cause no more than minimal damage to the property. As I observed in ILG Limited v. Aprilane Limited, that proposition appears to have originated in the first edition of Wylie Landlord and Tenant Law (1990) and to have been taken up by Ms. Ruth Cannon (2007) 12(1) C.P.L.J. 7, Mr. Martin Canny (2007) 12(4) C.P.L.J. 94 and Ms. Mema Byrne Landlord and Tenant Law: The Commercial Sector (2013) but appeared to me to be unsupported by any judicial authority. In support of the proposition that a landlord may do minimal damage, Professor Wylie cites Sweeney Ltd. v. Powerscourt Shopping Centre Ltd. [1984] I.R.501, 504 but I saw nothing in that case to suggest that the landlord is entitled to cause damage, so long as it is no more than minimal. What Carroll J. said, approving the statement in Deale The Law of Landlord and Tenant in the Republic of Ireland (1968) is that the landlord may not use force, for that is a criminal offence."

 

100.     In Dellway Investments & Ors v NAMA & Ors [2011] IESC 14, Finnegan J said:

 

"Prior to the enactment of section 97 a mortgagee could take possession without a court order or consent if it could do so peaceably: Gale v First National Building Society [1985] IR 609."

 

101.     In Wallace & anor v Davey [2022] IEHC 120 (in which receivers were seeking interlocutory injunctions including an injunction restraining the borrowers from taking possession) Stack J said at paragraphs 66, 70 and 71, inter alia:

 

"66.  It is asserted by the second plaintiff in his affidavit of 2 March, 2020, that the defendant, "by illegally breaking the locks, unlawfully seized control and took occupation of [the occupied units]". However, the Order of 30 May, 2017, did not grant possession of any of the properties to which it related to the plaintiffs named in those proceedings. The affidavits sworn by the plaintiffs in these proceedings assert a right to possession on the basis of the Mortgage Deed and this is correct so far as it goes. However, that right is a right to enter, and therefore must be either asserted on foot of a court order or exercised peaceably: see Charleton v Hassett [2021] IEHC 746, where it was held that the breaking of locks does not constitute peaceable re-entry."

...

70.   If the Joint Receivers wanted to enter into possession of any of the properties secured by the mortgage deed, then either they must obtain the keys from the defendant and enter in a peaceable manner, or they must obtain a court order to authorise such entry. In the process of obtaining the court order, any dispute as to their entitlement to enter into possession in their capacity as receivers can be resolved.

 

71.   That clearly has not been done here, and therefore, the status quo is that the defendant is in possession as mortgagor, that is, as owner of the Property, unless and until a court order dispossessing him is obtained."

 

 

102.     It is not denied by Everyday and the receiver that the receiver changed the locks. They did not have the plaintiff's consent or a court Order to do so. In those circumstances, Charleton v Hassett and Wallace v Davey lead inevitably to the conclusion that the plaintiff has established a strong case that possession was not obtained peaceably. The point is made by Mr. Harper that damage was not caused "to the fabric of the Main Street Property." That is not the test. It is the removal and changing of the locks which, on the above authorities, leads to the conclusion that there is a strong case that possession was not taken peaceably. In any event, the photographs (which of course remain to be proven) clearly show damage.

 

103.      This not a situation where the plaintiff could not be found and the defendants had to act in an emergency. It is understandable that the receiver's insurance policy would require him to ensure that receivership property is secure. However, the plaintiff was in constant contact with the receiver in September - December 2020 (i.e., at the time when the fist locks were changed) and there had been an extensive exchange of affidavits before the locks were changed in December 2021. There is no evidence of the plaintiff's consent to the changing of the locks even being sought. There is no reason why that could not have been done or why an application for a court Order could not have been made.

 

104.     In those circumstances, I am satisfied that the plaintiff has established a strong case that possession was not obtained peaceably.

 

 

Sale Price

 

105.     The plaintiff also submits that the Property is being sold at an undervalue and that the defendants are therefore failing to discharge their duty to obtain the best price reasonably obtainable. He bases this submission on two grounds. Firstly, that only part of the Property is being sold and that a sale of the entire Property would maximise the value. Secondly, there is confusion about what is in fact being sold. The advertisement notified the public that the retail unit, first floor restaurant and three apartments were being sold. The particulars of the property being sold set out in the draft Contract for Sale on the one hand appeared to refer to the entirety of the Property but went on to say that the sale property comprised "3 apartments and 2 commercial units..."

 

106.     At the hearing, counsel for Everyday and the receiver fairly and quite correctly clarified that what was intended to be sold was the entire Property. He explained that the sale property was misdescribed in the advertisement and the particulars in the draft contract as a result of an error about the "internal configuration".

 

107.     Leaving aside this particular issue for one moment, I would not be satisfied that the plaintiff had established that the Property was being sold at an undervalue. He did not adduce any expert evidence during the lengthy exchange of affidavits and the Court simply could not conclude that the guide price or the method of advertisement or sale would lead to the Property being sold at an undervalue.

 

108.     However, I do not believe that expert evidence is required to conclude that there is a fair question or a strong case that the vendor will not achieve the best price reasonably obtainable if the property that is actually available for sale is significantly larger than the property that is advertised for sale and is described in the draft contract. Common-sense is all that is required to conclude that there is a strong case that a seven-apartment development would be more attractive to some purchasers than a three-apartment development. Even if that is not the case, the consequence of the mis-description in the advertisement is to automatically exclude potential purchasers who would be interested in a bigger development and to therefore exclude competition, thereby carrying a risk that the price will not be the best price reasonably obtainable if the property had been properly described.

 

109.     I am, therefore, satisfied that the plaintiff has established a strong case on this point.

 

 

BALANCE OF CONVENIENCE/JUSTICE

110.     It is clear from O'Donnell J's judgment in Merck Sharp & Dohme v Clonmel Healthcare that if the Court is satisfied that the applicant has satisfied the applicable test, it must then consider how best the matter should be arranged pending the trial and that this involves a consideration of the balance of convenience and the balance of justice. Traditionally, the adequacy of damages was treated in advance of a consideration of the balance of convenience/justice and was determinative. However, it is clear that it is now to be considered as one of the factors in the assessment of the balance of justice, though in most cases, it is the most important factor. O'Donnell J stated, inter alia:

 

"(3)  If there is a fair issue to be tried (and it probably will be tried), the court should consider how best the matter should be arranged pending the trial, which involves a consideration of the balance of convenience and the balance of justice;

 

(4)    The most important element in that balance is, in most cases, the question of adequacy of damages;

 

(5)    In commercial cases where breach of contract is claimed, courts should be robustly sceptical of a claim that damages are not an adequate remedy;

 

(6)    ...

 

(7)    While the adequacy of damages is the most important component of any assessment of the balance of convenience or balance of justice, a number of other factors may come into play and may properly be considered and weighed in the balance in considering how matters are to be held most fairly pending a trial, and recognising the possibility that there may be no trial."

 

111.     O'Donnell J also emphasised that the consideration of whether or not to grant an injunction should not be approached as a checklist but as the flexible remedy which an injunction is intended to be.

 

112.     The burden of proving that the balance of justice/convenience favours the grant of relief is on the plaintiff.

 

113.     There are a number of factors which are relevant to the assessment of where the balance of convenience or balance of justice lies in this case.

 

114.     As noted by O'Donnell J, the most important factor, in most cases, is the question of the adequacy of damages. This is particularly so in commercial cases. O'Donnell J notes that in "commercial cases where breach of contract is claimed, courts should be robustly sceptical of a claim that damages are not an adequate remedy". The starting point for a consideration of whether this plaintiff could be adequately compensated by an award of damages if an injunction is not granted but he succeeds at the trial is that the development of the Main Street Property was a commercial investment. As such, the starting point is that damages are an adequate remedy. If the Property is sold and it is subsequently determined that the sale was wrongful, the plaintiff can be compensated by an award damages. The plaintiff claims that if he were to succeed, several different calculations would have to be done, including the calculation of further damage as to his good name. However, it is well-established that difficulty in assessing the level of damages does not mean that damages are an inadequate remedy. He also makes the point that the rental stream from the commercial units was to be his pension. The amount of any such loss of pension is an actuarial exercise.

 

115.     It undoubtedly appears that the development of the Property is a project which is of significance to the plaintiff both in financial and emotional terms. However, it is fundamentally a commercial matter. Stewart J said in McGonagle v McAteer [2017] IEHC 672 that "[T]he sentimental value placed in a specific piece of property by a party is insufficient, in and of itself, to warrant the grant of interlocutory relief, where that piece of property is not the family home." Stewart J also said in Whelan v Promontoria (Finn) Ltd v & Fennell [2017] IEHC 739 at paragraph 40:

 

"40. In assessing the law in relation to the adequacy of damages, the Court is cognisant of two opposing legal rules of thumb: damages aren't an adequate remedy for a trespass and damages are an adequate remedy for commercial investments. Identical considerations arose in this Court's decision in McGarry v. O'Brien (Rec No: 2017/4686P), which is being delivered contemporaneously to this decision. With respect to the adequacy of damages, the Court's reasoning is broadly similar in both cases. In attempting to reconcile the above rules, the emerging analytic theme is to use a fact-based approach. The property rights at stake in this case relate to real property. Each parcel of land is unique and, where a defendant has improperly disposed of that land, it is impossible to fully compensate for the loss suffered because no other piece of land is identical to the one that was lost. However, where the land is involved in some commercial or monetary venture and the predominant feature of the plaintiff's investment in the land is for some financial purpose, it is quite correct for a court to conclude that such loss can be compensated with an award in damages, as the predominant feature of the plaintiff's investment in the land does not touch upon any of the aspects of that land which make it unique."

 

 

 

116.     Thus, in this case, I am satisfied that the plaintiff could be compensated by an award of damages, and in that sense damages would be an adequate remedy.

 

117.     The plaintiff argues by reference to Everyday's annual accounts that they would not be able to satisfy an award of damages. I do not accept that I can conclude on that basis that damages would not be an adequate remedy. The plaintiff does not give any estimate or indication as to what he says his losses might be and it is therefore impossible for the Court to reach a conclusion that Everyday would not be able to meet an award.

 

118.     The flip-side of the consideration of the adequacy of damages is whether damages would be an adequate remedy for the defendants if the plaintiff obtains an injunction but fails in the substantive proceedings. A central consideration in this assessment is whether the undertaking as to damages given by the plaintiff is meaningful in the sense that he could satisfy the undertaking. The defendants rely on Martin v An Bord Pleanála [2002] 2 IR 655 and Szabo v Kavanagh [2013] IEHC 491. In Martin, O'Sullivan J said "Again, whilst the applicant has given an undertaking as to damages in the traditional form there is no sufficient detail in relation to it which would enable me to assess it as a realistic undertaking when balanced against the prospective losses of the notice party if the stay were granted and the applicant subsequently loses his case". In Szabo, the High Court noted that the applicant had provided "no detail whatsoever concerning her underlying means or income that would allow the court to assess whether that undertaking is realistic when balanced against the prospective losses to the defendant."

 

119.     The defendants claim that the undertaking is not meaningful in the sense that there is no evidence that the plaintiff would be able to discharge any award on foot of his undertaking. They point to the fact that the plaintiff has failed to make any payment on foot of the letters of demand, that he is very significantly indebted to the defendants (in excess of €1,259,091.34, it is claimed) and is indebted to a number of other parties on foot of costs Orders made against him in several other sets of proceedings (Mr. Smith sets out details of these proceedings at paragraph 34 of his affidavit). They also rely on the fact that despite being challenged to do so, the plaintiff has failed to place any evidence before the Court of his ability to satisfy the undertaking as to damages.

 

120.     The plaintiff does not deny that he has received a significant amount of money and has not repaid it. I return to this below. Nor does he deny that there are several other Orders for Costs against him. He simply says in his written submissions (not his affidavits) that he "has the ability to pay whatever money could be deemed due and owing in relation to The Main Street Property to any of the defendants, without the requirement for him to sell The Main Street Property." Importantly, the plaintiff, despite his undertaking being challenged by the defendants, has placed no evidence before the Court that he would be able to discharge the undertaking. The burden of proof is on the plaintiff.

 

121.     I am therefore not satisfied that the plaintiff has discharged the burden of proving that he would be able to discharge an award on foot of his undertaking.

 

122.     However, in my view, the Court must be careful not to put too much weight on this factor. Stewart J said in McGonagle v McAteer that "It is clear from the decision of Clarke J in Molloy & Molloy v Molloy that the Court is entitled to rely on the undertaking as to damages from the plaintiff. However, in weighing the question of where the balance of inconvenience lies, the Court can have regard at that stage to the reality or the viability of that undertaking as to damages. Clarke J describes it best as looking to where the "inconvenience" lies..." Clarke J said in Molloy & Molloy v Molloy that:

 

"14. However the defendant has questioned the capacity of the plaintiffs to meet any damages that might be awarded. Despite this having been raised on a credible basis..., no evidence was tendered which would suggest that the plaintiffs could meet any award of damages which might be made on foot of their undertaking.

 

15.   The defendant suggested that it was her understanding that an undertaking should not be accepted in those circumstances. That is not, strictly speaking, correct. Any plaintiff is entitled to offer an undertaking as to damages. The capacity of the plaintiff to meet any such undertaking does not effect the validity of the undertaking itself. However the capacity of the party concerned to meet any damages which might likely be awarded is a material factor in considering the adequacy of damages and the balance of convenience. A party which could adequately be compensated in damages and who has the benefit of an undertaking from an opposing party who would be good for any likely damages to be awarded is in a very different position from a party faced with a largely worthless undertaking as to damages."

 

123.     In Buttimer v Oak Fuel Supermarket [2023] IEHC 126, I said that:

 

"The ability of the plaintiff to satisfy an award of damages made on foot of her undertaking and her decision not to place any financial information before the Court are undoubtedly factors which the Court can and must take into account but it is essential not to place too much weight on them. The purpose of an undertaking as to damages is to provide an avenue for the successful defendant to recover any damages from the unsuccessful plaintiff who had secured interlocutory relief and it is therefore relevant whether the undertaking is a meaningful one. However, a precondition that an applicant for an injunction must prove at that stage that they have the means to satisfy an award of damages (the quantum of which is not known at the time the undertaking is given) against them would have the potential to deprive individuals of more limited means of the right or ability to obtain interlocutory relief against an alleged wrong. It would have the effect of limiting the availability of equitable relief to those with means and assets. If the plaintiff obtains an injunction on foot of an undertaking as to damages, the defendant, if successful at trial, can obtain an award of damages on foot of that undertaking and will have all of the usual enforcement mechanisms available to it. Thus, the ability to satisfy any award and the absence of financial information are important relevant factors but do not in themselves automatically disqualify the plaintiff from obtaining relief, if otherwise entitled to it."

 

124.     In Minister for Justice, Equality and Law Reform v Devine [2012] 1 IR 326, O'Donnell J said:

 

"23... it is well established that a court can give an injunction notwithstanding the fact that the undertaking as to damages is of little or no worth because of the lack of means of the Minister (Allen v Jambo Holdings Ltd. [1980] 1 W.L.R. 1252). It would clearly be wrong that the deserving plaintiff with a good claim would be denied an injunction simply because they were without assets. In such a case the court must take into account the unlikelihood of such a party being able to satisfy an undertaking as to damages as one of the factors in considering the grant of an interlocutory injunction but may, and on occasion does, proceed to grant an injunction in such circumstances without such an undertaking. Finally, it is generally the case that an undertaking as to damages will not extend to protect the interests of third parties.

 

24. The picture which emerges, therefore, is not of a mechanical rule, but rather of the exercise of the discretionary jurisdiction in which the presence or absence of an undertaking as to damages may be significant, and in many cases decisive..."

 

125.     Thus, the likely inability of an applicant to satisfy their undertaking as to damages is not a disqualifying factor but, in light of what the court is trying to achieve, it is an important factor in the assessment of where the balance of justice lies.

 

126.     Delay is also a factor in the assessment of the overall balance of justice. Indeed, in some instances, it may be seen as a factor which in itself disentitles an applicant to equitable relief. I have approached it as part of the assessment of the balance of justice. Ms Hartigan avers at paragraph 11 of her first affidavit that the plaintiff was informed of Mr. Harper's appointment by letter of the 23^rd September 2020. The plaintiff claims to have first received notification of the appointment on the 2^nd February 2021 when it was attached to a letter during an exchange of correspondence. However, on his own evidence, he was aware of the appointment from the 26^th September 2020. At paragraph 183 of his grounding affidavit, he explains how one of his tenants contacted him advising that he, the tenant, had received a letter from a property management company informing the tenant that Mr. Harper had been appointed as receiver over the commercial unit which was occupied by the tenant. The plaintiff says that the tenant gave him  a copy of that letter on the 26^th September. According to the plaintiff, the tenant has, since then, being paying the rent to the receiver. Indeed, on the 28^th September, the plaintiff made a data access request to Mr. Harper and on the 30^th September wrote to Mr. Harper referring to the letter from the property management company to the tenant and noted that it stated that "Damien Harper of Grant Thornton was appointed Receiver" over the property at "Chilli Lounge, 32 Main Street, Cavan." He went on to say that no such appointment could validly exist because of the issue in relation to the letter of sanction of the 18^th December 2008. Thus, it is absolutely clear that the plaintiff was aware of the appointment of Mr. Harper as receiver and that Mr. Harper was interfering with receipt of rents from the 26^th September 2020.

 

127.     These proceedings were not issued until the 6^th May 2021 and the Notice of Motion seeking these reliefs was not issued until the 21^st June 2021. There is an obligation on an applicant for urgent relief to move with expedition. The plaintiff did not do so. A period of almost eight months passed before the proceedings were instituted and a further period of six weeks passed after that before the plaintiff sought interlocutory relief. This delay must also be seen in the context of the fact that the plaintiff was aware of and, indeed, was raising the issue about the letter of sanction of the 18^th December 2008 since 2012 and receivers had already been appointed over 4 Church Street and the Mayo Lands.

 

128.     In assessing the weight to be given to this delay in the overall balance, I have had regard to the fact that the plaintiff did not simply sit back and do nothing. As soon as he became aware of the appointment of Mr. Harper, he immediately started corresponding in relation to the matter. I have also had regard to the fact that he only became aware of the sale of the Property on the 23^rd April 2021. However, a party cannot simply rely on the fact of correspondence to delay making an application where relief is being sought. This is particularly so where no meaningful progress towards resolving the dispute is being made in the correspondence. (See Nolan Transport (Oaklands) Ltd v Halligan (Unreported, High Court, 22^nd March 1994).

 

129.     I am satisfied that, given that the plaintiff was raising the issue and moved quickly when he became aware that the Property was for sale, the delay in this case is not sufficient, in itself, to disentitle the plaintiff to relief but it is a factor in the overall balance.

 

130.     The fact that the plaintiff does not deny receiving a very significant sum of money and does not deny that it has not been repaid is relevant to the balance of justice.

 

131.     It is also of importance that even if injunctions are granted on the basis of the defendants' reliance on the letter of the 18^th December 2008, it may well be open to the defendants to seek to enforce the debt and security on foot of the plaintiff having received the moneys and/or the letter of the 1^st June 2007 or 23^rd November 2003. In those circumstances, an injunction may well be futile.

 

132.     These factors all undoubtedly weigh heavily against the grant of interlocutory injunctions.

 

133.     As against those factors, the plaintiff deposes in paragraphs 230 and 231 of his grounding affidavit that he applied for and received approval for the Town Renewal Scheme 2000 originally on the basis that the seven apartments would be sold when complete but that when AIB withdrew funding he applied to the Department of Housing, Planning and Local Government to amend the scheme in relation to the seven apartments from accommodation for sale to the status of Rented Residential Accommodation. The plaintiff does not expand on the relevance of this in his affidavits. He says at paragraph 13(4) of his written submissions that the apartments were certified as Rented Residential Accommodation and that a sale of the apartments by Everyday would nullify the tax status of these apartments. There is simply no evidence before me in relation to the operation of this scheme. Furthermore, if that is a consequence, it is one which arises from the plaintiff's own actions. This must be seen in the context of his acceptance, at one stage, that he was bound by the 2003 letter and this required payment from the proceeds of sale of the apartments. By amending his application to the scheme, the plaintiff, on his case, rendered it impossible for him to comply with that provision without incurring financial consequences .  

 

134.     The plaintiff states in his written submissions (paragraph 14(4)) that the value of the Main Street Property exceeds any amount which might be owed to the defendants and therefore the defendants would not be prejudiced by an injunction. That would obviously be a matter to be taken into account. However, the plaintiff presented no evidence as to the value of the property. He does submit in the preceding paragraph of his submissions that the advertised terms of sale referred to three apartments, a restaurant and a retail unit, and that a price of €525,000 was being sought, so if the entirety of the Property (seven apartments, a restaurant and two retail units over basements) were sold it would be worth well in excess of €1,000,000. However, it was clarified at the hearing by counsel for Everyday and the receiver that in fact the whole Property was being sold for €525,000 and therefore the plaintiff's argument, in the absence of a valuation, that because a part of the property might attract €525,000, the whole property would obtain more than €100,000,000 has no basis in the evidence.

 

135.      Thus, neither of these matters can outweigh the factors set out above which lean heavily against the grant of injunctions.

 

136.     However, it seems to me that a very significant factor in the balance of justice must be the nature of one of the claims upon which I am satisfied the plaintiff has established a strong case, i.e. that the signature on the 2008 letter is a forgery. If the Property I sold and it is established at trial that an employee of the bank forged a signature in order to cure a perceived defect in the bank's security (which appears to be the plaintiff's allegation) the consequence would be that the defendants were permitted to take possession and to sell the Property in indirect reliance on a forged signature. There are strong public policy reasons why the Court should place very considerable weight on this aspect of the case. Stewart J in Whelan v Promontoria (Finn) Ltd & Fennell [2012] IEHC 739, said at paragraphs 41 and 43:

 

"41. If, on the facts, I were to counter-balance the commercial features of a mortgagor plaintiff's investment in real property, I would look for some fact which 1) displaces financial gain as the predominant feature of the investment (e.g. the property is also that plaintiff's family home), or 2) establishes a potential violation of the plaintiff's property rights in land of such significance as to amount to a violation of the special status those rights hold in the field of property law by virtue of the considerations outlined above. In this case and in McGarry, the predominant feature of the plaintiff's investment in the land was financial. However, in their actions, the defendants in both cases have potentially violated the base level of respect that property rights in land attract. In McGarry, almost the entirety of the defendant's case was in disarray, with affidavits loosely drafted, vital pieces of evidence left out and the receiver's powers exercised in a manner that had the potential to raise serious public policy concerns. The cumulative effect of these facts amounted to a situation where, if the questions to be tried were resolved in the plaintiff's favour, the defendant would have acted with such disregard to the plaintiff's property rights in land that it be simply wrong to allow the receivership to continue before the defendant got his house in order.

 

...

 

43. It is important to make clear that, in taking a fact based approach and performing the above assessment, it is not simply a matter of a fair question to be tried being established. I would seek to determine whether the mortgagor plaintiff has established issues which, if resolved in their favour, would mean that the defendant had behaved in such an improper manner that their actions are practically incongruous with the entire notion of real property rights and the special place they hold in Irish law. Such issues include, but are not limited to, high levels of incoherence or lack of care in preparation of the defendant's case or conduct, improper, capricious or arbitrary activity on the defendant's part and/or activity that has the potential to raise serious public policy concerns."  [emphasis added]

 

137.     I am therefore satisfied that this is a very significant factor. Of course, the fact that the plaintiff could be compensated in damages would still stand and the defendants could still seek to rely on the plaintiff's general liability to repay and the liability under the  2007 and 2003 letters and therefore an injunction may be futile. However, if this issue is resolved in the plaintiff's favour that "would mean that the defendant had behaved in such an improper manner that their actions are practically incongruous with the entire notion of real property rights and the special place they hold in Irish law." In my view, notwithstanding the weight of the factors leaning against the grant of an injunction, this consideration is of sufficient importance to outweigh those factors in respect of the sale of this Property (though not the other injunctions that are sought). Of course, it should be said that a mere allegation of fraud can not be sufficient to always shift the balance in favour of granting an interlocutory injunction, particularly where the factors against doing so are so considerable. However, on the particular facts of this case, the allegations go well beyond a mere assertion and they are sufficient to shift the balance.

 

138.     The Court must decide how things are best arranged pending trial and in my view when regard is had to this factor the balance of justice favours an Order restraining the sale of the Property because a sale would either mean the loss of the Property or the possibly the future unravelling of a sale. The balance does not favour an Order being made directing the defendants to give up possession or to deliver the keys because retention of possession and the keys does not lead to the permanent loss of the Property or the unravelling of a sale. In the event that the plaintiff succeeds at trial possession can be restored and the loss of rent is a simple financial exercise. I do not believe that a sufficient evidential basis has been laid for a conclusion that it is necessary to make an interlocutory Order compelling Everyday and the receiver to account to the plaintiff in respect of rent at this stage.

 

139.     I will therefore make an Order restraining the second and third-named defendants, their servants or agents, and all other persons having notice of the Order from advertising for sale, selling or disposing of the Main Street Property and decline the grant the other reliefs.

 

140.     I also propose to make directions to ensure that this matter is ready for trial as expeditiously as possible. I will hear the parties in respect of such directions and in relation to costs.