A man has failed to get a High Court order preventing a receiver selling his nine-acre agricultural landholding in Co Cork arising from an unpaid €70,000 loan advanced to a company.
Maurice Foley had sought the injunction concerning his lands at Ballynoran, Charleville, pending the determination of his action against Promontoria (Oyster) Designated Activity Company (PODAC) and the receiver.
In a judgment published this week, Ms Justice Siobhán Stack said she was satisfied, on the documents before her, that Mr Foley had failed to make out a fair issue to be tried such as would entitle him to the injunction sought.
The background to the proceedings lay in the advancement of €70,000 by Ulster Bank Ltd to Halcon Communications Ltd, secured by a joint and several letter of guarantee signed by Mr Foley and two others, plus a first legal charge over the lands, she outlined.
It was not in dispute the monies advanced have not been repaid, she said.
Summary proceedings were taken in 2015 by Ulster Bank, seeking to enter judgment against the co-guarantors. PODAC, having taken over Ulster Bank’s loans, was later substituted as plaintiff in 2017.
While those proceedings appear not to have been progressed, the judge said they were not material to the injunction application.
This application concerned the charge registered on the lands on November 11th, 2009, the same date on which Mr Foley became registered owner of the property, she said. PODAC was registered as owner of that charge in March 2017.
Injunction
Mr Foley sought an injunction to prevent the sale on two grounds. He alleged there was no evidence PODAC was entitled to exercise the rights of the charge and also claimed the receiver was not validly appointed by PODAC.
The judge said the material fact is that PODAC is the registered owner of the charge on foot of which a power of sale is said to arise and on foot of which the receiver has been appointed.
The registration of PODAC as owner of the charge is proof the charge has been transferred to it and there was therefore no legal basis to this first ground.
She also found no basis for the second ground, that the receiver was not validly appointed.
She said Stephen Tennant was in May 2019 appointed receiver, on foot of the registered charge, over Mr Foley's assets, and Mr Tennant was sued by Mr Foley in that capacity when these proceedings were initiated.
Mr Tennant was discharged as receiver on November 16th, 2020 on which date Damien Harper was appointed receiver.
Mr Foley had complained he was only informed of Mr Harper’s appointment in January 2021, well after the December 16th, 2020 date of an auction of the lands, and also after Mr Foley had issued his application for orders to restrain any sale of the property.
‘Less than satisfactory’
While it was “less than satisfactory” the registered owner of the property was not informed in a timely fashion that Mr Tennant had been replaced as receiver, that did not alter Mr Harper’s authority to act as such, the judge said.
She went on to find Mr Harper’s appointment by PODAC as receiver over the property is valid. Accordingly, she held there was no fair question to be tried on either of the two grounds raised and refused the injunction on that basis.
