Kavanagh v Hilliard & anor [2019] IEHC 797 (14 November 2019)

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JUDGMENT of Ms. Justice Pilkington delivered on the 14th day of November, 2019

1. On the 3rd April, 2017, the plaintiff issued a plenary summons seeking orders restraining

the defendants, their servants or agents from interfering with the functions and office of

the plaintiff “as receiver of the properties.” Other reliefs include damages for trespass and

loss of rental income together with the standard reliefs of interest, further or other order

2. On the same day (3rd April, 2017) a notice of motion issued on behalf of the plaintiff

seeking essentially the same reliefs (although somewhat truncated) being:-

“An order restraining the defendants and each of them, their servants or agents

from interfering with the functions and office of the plaintiff as receiver of the

The identity of “the properties” is not apparent on the face of the plenary summons or the

3. By Order of Coffey J. on 12th March 2018 (pursuant I understand to an ex parte

application) the notice parties, Dermot and Mary Duffy were, on their own application,

4. This judgment is linked to and was heard with a related case entitled “The High Court,

Record No. 2018/4201 P., between Dermot Duffy and Mary Duffy, plaintiffs and Tom

Kavanagh and Havbell Designated Activity Company, defendants” which relate to one

aspect of these 2017 proceedings. I have delivered a separate judgment in respect of the

2018 proceedings. As all matters were heard together (and particularly, in respect of the

notice parties, the full facts are to be found in considering both judgments). I shall refer

to those proceedings as the 2018 proceedings and these proceedings as the 2017

5. Within the 2017 proceedings above, a number of affidavits have been filed. The grounding

affidavit of Tom Kavanagh sworn on 23rd March, 2017 states that the properties in

(a) 34 Glen Easton Lodge, Leixlip, Co. Co Kildare (“the Leixlip property”)

(b) 39 Herberton Road, Crumlin, Dublin 12 (“the Crumlin property”), and

6. The entirety of the 2018 proceedings and the role of the notice parties within these 2017

proceedings relates solely to the Palmerstown property. It is comprised within folio

117421F in the Registry of Freeholders, County Dublin. The folio records that on the 23rd

July, 2008, Dermot Duffy, Mary Duffy, Harry Hilliard and Ursula Hilliard were each

registered as full owners as tenant in common of a one undivided one quarter share in the

property. The Duffys are the parents and parents in law of the defendants Ursula and

Harry Hilliard respectively. Both are persons of advanced years and have not enjoyed

7. Initially, and for a considerable period of time, the defendants (“the Hilliards”) were

without legal representation. However, they subsequently retained solicitor and counsel

for the hearing of this application. Dermot and Mary Duffy (“the Duffys”) had legal

representation throughout. An application was made that Mary Duffy proceed via the

8. The grounding affidavit of the plaintiff sets out and exhibits the background facts and

9. Pursuant to an ‘Instrument of Appointment of Receiver’ dated 22nd February, 2016, the

plaintiff was appointed receiver by Havbell Limited (the assignee of Permanent TSB

10. That instrument of appointment, after reciting deeds of transfer dated 19th June, 2015

between Permanent TSB P.L.C. and Havbell Limited, a mortgage sale agreement between

the same parties, originally dated 10th March, 2015 and then amended and restated on

17th June, 2015, the seller, Permanent TSB, agreed to sell and Havbell Limited agreed to

buy, inter ali, “all estate a, right, title, interest, benefit and obligations (whether past,

present or future) of the seller in, to and under the mortgages (as defined in the

“…which included the mortgage between Harry Hilliard and Ursula Hilliard (the

“borrowers”) and the seller (formerly Irish Life and Permanent PLC) dated 10th

April, 2003, the mortgage between the borrowers and the seller (formerly Irish Life

and Permanent PLC) dated 21st July, 2003, the mortgage between the borrowers

and the seller (formerly Irish Life and Permanent PLC) dated 11th February, 2005,

the mortgage between the borrowers and the seller (formerly Irish Life and

Permanent P.L.C.) dated 4th April, 2007 (the “Hilliard mortgages”) (the “deeds of

“We, Havbell Limited, do hereby appoint Tom Kavanagh of… to be receiver (hereinafter

referred to as “Receiver”) of all the property and assets referred to and comprised

in and charged by the Hilliard mortgages, to enter upon and take possession of the

11. The document has been signed on behalf of Havbell Limited by its duly authorised

signatory. Issue is taken, by the defendants, as to the (proper) authorisation of the

person who signed in that capacity and I will revert to this point.

12. Thereafter, the deed of transfer between Permanent TSB P.L.C. and Havbell Limited dated

19th June, 2015 discloses what is described as a mortgage sale agreement whereby

Havbell Limited purchased the security interest and contractual rights of Permanent TSB

under the financial documents set out in schedule one and all of the estate, right, title and

interest in the properties listed at schedule two. Schedule one (the document is partially

redacted, in what is now recognised as the usual form, to protect the confidentiality of

other entities) discloses the six loan facilities extended to the defendants and collectively

described as the Harry Hilliard Connection. Schedule one, part B sets out the various

mortgages again under the heading “Harry Hilliard connection” which includes, amongst

others, the properties at Leixlip, Crumlin and Palmerstown. On the same date there is

also a similar deed of conveyance and assignment of the same date in respect of Registry

13. As set out above the instrument of appointment of receiver recites four mortgages

(collectively referred to as “the Hilliard mortgages”) within the document to ground the

appointment of the plaintiff receiver – however, two of those mortgages, dated 10th April,

2003 and 21st July, 2003, which both appear to relate to the property known as 145

Emmett Road, Inchicore, County Dublin have not been exhibited – they appear within

schedule two of the deed of transfer as part of the mortgage documentation held in

respect of the Harry Hilliard connection as defined within that document. The only

mortgages specifically exhibited in respect of this application are those of 4th April, 2007

which appears to deal with the properties at Leixlip and Crumlin and the mortgage of 11th

14. By letter dated 23rd June, 2015, Capita Asset Services wrote to the defendants informing

them that they have been appointed by Havbell Limited to provide various loan and

management administration services. New account details are furnished. No such letters

15. In respect of the documentation approving the provision of loan facilities to the

defendant, the first is the documentation constituting the loan approval from Irish Life

and Permanent P.L.C. In respect of each loan offer, there is a document entitled

“acceptance of loan offer” where both parties sign a document which states, amongst

other matters, that the entirety of the loan offer is being accepted by the defendants on

the terms and conditions set out in (a) letter of approval, (b) the general mortgage loan

approval conditions, and (c) the Irish Permanent Mortgage Conditions. Within the

documentation relied upon and exhibited by the plaintiff (c) is not exhibited to any of the

16. The premises at Leixlip and Crumlin are part of the security furnished in respect of a

letter of approval from Permanent TSB commercial division in respect of a credit advance

in excess of €1.1 million. At para. 13 of the loan approval, security for the facility

requiring a first legal charge over in four named properties including Crumlin and Leixlip.

This document was signed by the Hilliards on the 20th February, 2007.

17. In respect of the Leixlip and Crumlin properties, the charge is dated 4th April, 2007 and

“This indenture incorporates the clauses set out in Permanent TSB Mortgage

Conditions 2002 (herein called “the mortgage conditions”) and the mortgagor and

guarantor (if any) ACKNOWLEDGE RECEIPT of the mortgage conditions which they

have read and understood and they covenant with Permanent TSB to observe and

No 2002 Permanent TSB Mortgage Conditions have been exhibited by the plaintiff (or any

mortgage conditions). There is a document of the same name exhibited to the affidavit

sworn by Harry Hilliard. The mortgage and charge is, as with the letter of loan approval,

in respect of four named properties – the Leixlip property appears to be comprised within

folio 5364L of the register of leaseholders county of Kildare. The Crumlin property

“All that plot or parcel being part of the lower commons of Kilmainham on which the

house and premises formerly known as No. 1 Springfield Terrace but now known as

No. 39 Herberton Road, Rialto in the city of Dublin together with a right of way….”

18. In respect of the Leixlip premises, the affidavit of Elaine McNalley sworn on the 31st

October, 2018 exhibits a complete copy of that document disclosing the registration of

the Hilliard’s as full owners on 13th July, 2006 and the registration of the charge in favour

of Irish Life and Permanent P.L.C. on the 17th day of October, 2007.

19. In respect of the Crumlin property, the charge has been stamped as being registered in

20. With regard to the Crumlin property, very little is specifically deposed to in respect of it.

There is the averment of the plaintiff that Chartered Assets Property Asset Management

attended the property and exhibits a property status report date 3rd March, 2016 (almost

a year prior to the swearing of the plaintiff’s grounding affidavit). In any event, the

document essentially states the property to be occupied by the defendants’ son and any

evidence with regard to any tenancy or payment of rent and other matters is simply

marked as “unknown”. Apparently, the defendants’ son advised that the subject property

was his family home and it is no longer in receivership and is being rectified via his

barristers and solicitors. Apparently, thereafter, he contacted the office and advised that

he would not be cooperating with Chartered Assets or the receivership.

21. The only other matter is an affidavit which was handed into court after the hearing of this

application, being a supplemental affidavit of the plaintiff sworn on the 18th day of

January, 2019. That affidavit avers that the plaintiff receiver receives no rental income

whatsoever from the Crumlin premises or the Palmerstown premises (no explanation of

an entitlement of this plaintiff to receive the entirety of rental income from this property

is dealt with). However, in respect of the Leixlip property, the plaintiff has received

€38,775.00 in rental income from Kildare County Council. This is consistent with the

averments of the first named defendant in his sixth affidavit sworn on 6th November

2018 where he assets that the plaintiff is in receipt of the rent from a lease to a private

tenant under the R.A.S. scheme administered by South Dublin County Council. Why the

correct position could not be confirmed by the plaintiff at the hearing and not

22. Accordingly, it appears that the Crumlin property may or may not be tenanted, may or

may not still have the defendants’ son residing within it. It appears to be a non-income

generating asset and nor has there been any cooperation by the defendants in respect of

23. The first named defendant, on behalf of himself and his spouse, has sworn a myriad of

affidavits within these proceedings, a number before he obtained legal representation. He

specifically takes issue with various matters surrounding the appointment of the plaintiff

receiver. Some have, correctly in my view, not been relied upon by his counsel in this

24. With regard to the Palmerstown property, para. 15 of the plaintiff’s grounding affidavit

“On or about the 23rd day of July, 2008, the defendants were registered as full

owners as tenants in common of one undivided one quarter share of… in folio

117421F of the register of freehold interest, county Dublin. The bank’s charge was

registered on 23rd July, 2008. The owners registered at entry 2 and 3, being the

tenants in common holding the balance of the undivided shares in the property,

were also indebted to the plaintiff herein. Your deponent was appointed receiver

over their interest in the property on January 20th, 2017. The plaintiff seeks no

orders at this time as against the owners registered at entry 2 and 3 of folio

The folio entry at 2 and 3 in folio 117421F are the notice parties, the Duffys. No evidence

of their indebtedness to the plaintiff is exhibited, indeed the documentary evidence

suggests that no such indebtedness exists. Beyond a clear assertion by the plaintiff’s

counsel that no orders are being sought against the notice parties, no further clarification

has been forthcoming. The appointment of the receiver referred to above on 20th January

2017 is not exhibited within these proceedings but is exhibited and dealt with within the

25. Folio 117421F discloses the registration on 23rd July, 2008 of the defendants and the

notice parties as tenants in common of one undivided one quarter share respectively and

the entry by charge in favour of Irish Life and Permanent P.L.C. dated 23rd July, 2008 (in

respect of the Hilliards only) and a further charge on 18th February, 2009 again in favour

of Irish Life and Permanent P.L.C. in respect of the Duffys only. In respect of the entry of

the charge in favour of the Duffys of 18th February, 2009, on 15th July, 2015, there are

two entries on the folio by Havbell Limited stating that it is the owner of the charge

registered at entries 2 and 3 respectively (the registration of the respective notice parties

26. In respect of the Palmerstown property, the documentation discloses:-

(a) A letter of offer of 1st February, 2005 whereby the defendants accepted a loan of

The acceptance of loan offer (dated 7th February 2005) in respect of the Palmerstown

property states that it comprises (a) letter of approval, (b) the general mortgage loan

approval conditions, and (c) the Irish Permanent Mortgage Conditions. Interestingly, the

Hilliards in executing the loan offer, which within clause 2 states as follows:-

“We hereby state that no third party (whether a person or persons or body or

bodies) has or claims any financial, equitable or beneficial estate or interest in the

That is incorrect, but it is clearly signed by the Hilliards (and appears to be witnessed by

(b) It appears that the same firm of solicitors acted throughout for the Hilliards and the

Duffys. This letter of offer is clear in that the amount of the loan is set out at

€250,000.00 in a property having an estimated value of €315,000.00. Nowhere in

the acceptance of loan offer signed by the Hilliards do they refer to the interest of

27. The charge dated 11th February 2015 in respect of folio 117421F executed by the

defendant is in turn referable to the Permanent TSB Mortgage Conditions 2002 which are

“The mortgagor, the registered owner as beneficial owner hereby charges the

The second schedule clearly states that the entirety of the Palmerstown property is

mortgaged upon an advance of €250,000.00. The document is executed by the

28. The next document, undated, is an indenture of confirmation executed by the Duffys and

again witnessed by their solicitors. It is stated to be supplemental to the indenture of

mortgage and one of the recitals states that it is apprehended that the beneficiary

(unnamed but signed by the Duffys as beneficiaries) may have some beneficial estate,

right, title or interest in the property and at recital C states as follows:-

“The beneficiary at the request of the mortgagor has agreed to execute there

presents for the purpose of confirming the within Indenture of Mortgage and further

assuring the property to Permanent TSB as security for the present and future

“The beneficiary as to all (if any) of his beneficial estate, right, title and interest

therein as beneficial owner HEREBY GRANTS, CONVEYS AND CONFIRMS unto

Permanent TSB ALL THAT AND THOSE so much of the property (save any part of

the ownership whereof is registered in the Land Registry) as is of freehold tenure

TO HOLD the same unto Permanent TSB in fee simple subject to the proviso for the

“The beneficiary as to all (if any) of his beneficial estate, right, title and interest

therein as beneficial owner HEREBY CONFIRMS THE CHARGE created by the within

indenture of mortgage on so much of the property the ownership whereof in the

case of freehold property is registered with the Land Registry and in the case of

leasehold property the leasehold interest whereof is registered in the Land Registry

“The Beneficiary hereby further acknowledges that all powers, remedies and rights

of Permanent TSB under the provisions of the within indenture of mortgage or

implied by statute in the within indenture of mortgage shall be exercisable by

Permanent TSB without notice to the beneficiary and notwithstanding anything

contained in these presents, the Beneficiary shall not be deemed to have any rights

29. As set out above, the plaintiff, having been appointed receiver on 22nd February, 2016,

by letter dated 14th March, 2017, solicitors on his behalf wrote to the defendants seeking

possession of the three properties set out above (possession of the entirety of

Palmerstown is sought). The letter clearly states that should they fail to do so, injunctive

30. It was arising from these matters that the Duffys sought (somewhat unusually) to be

joined independently on an ex parte application as notice parties. They did so upon the

basis that orders might be made against them in circumstances where they had a

31. I have set out above the documentation exhibited by the receiver in respect of the

Palmerstown property and the various issues that arise in relation to it. However, that is

not the complete picture. Within the affidavit grounding the ex parte application to be

joined by the Duffys and indeed within their 2018 proceedings, additional documentation

has been exhibited which has not been exhibited by the plaintiff, nor dealt with by him,

32. I have already dealt with the mortgage executed by the Hilliards on 11th February, 2005

and the indenture of confirmation executed by the Duffys on the same date. However, on

the 11th February, 2005, the Duffys executed one further document, specifically a charge

in identical terms to that executed by the Hilliards. I reiterate that they executed a charge

(not a guarantee and not any other documentation). The mortgage is clear in its terms.

“The sum initially advanced on foot of the this security is set out in the first

schedule, the receipt thereof is hereby acknowledged by the mortgagor.”

“The mortgagor, the registered owner as beneficial owner, hereby charges the

property described in the second schedule hereto with the payment to Permanent

TSB of all present and future advances payable by the mortgagor to Permanent TSB

under the mortgage conditions, and the mortgagor hereby assents to the

registration of the said charge as a burden on the property hereby charged....”

Clause 7 of the document again references the Permanent TSB Mortgage Conditions 2002

34. The only difficulty is that Dermot Duffy and Mary Duffy, who had solicitors acting for them

throughout this conveyancing process, never appear to have borrowed any funds from

Permanent TSB. It is quite clear on the basis of the documentation contained within the

various affidavits that Permanent TSB extended one loan facility of €250,000.00. They did

not extend €250,000.00 to the Hilliards and €250,000.00 to the Duffys. Thus, we have an

extraordinary situation where the Duffys executed a mortgage acknowledging a borrowing

of €250,000.00 in their name. The factual position appears to be at variance with this

35. Thus, on the 11th February, 2005, the Duffys signed two documents:-

(a) The indenture of confirmation as annexure to the mortgage executed by the

Hilliards – the indenture of confirmation does not appear within the Duffys’

documentation but it is clearly exhibited by the plaintiff receiver within his

(b) On the same, they executed a mortgage acknowledging receipt of a

36. No submissions were advanced as to how these documents might be reconciled.

37. Whilst the plaintiff receiver sets out that he was appointed receiver over the Duffys’

interests, pursuant to the registration of charge by them in favour of Permanent TSB, in a

deed of appointment of 20th January, 2017, the document is only to be found within the

2018 proceedings. Within the recitals, it states that under the security documents within

this instrument that a power to appoint a receiver had become exercisable and that in

pursuance of the powers concerned within the security documents, Havbell appointed

Tom Kavanagh to that position. The security documentation or schedule sets out the

mortgage and charge dated 11th February, 2005 between Dermot Duffy and Mary Duffy

of the one part and Irish Life and Permanent P.L.C. of the other part in respect of the

premises within folio 117421F of the Register of Freeholders, County of Dublin.

38. Again, we have an inherent contradiction. In the initial appointment of receiver dated

22nd February, 2016, the mortgage to the Hilliards in respect of Palmerstown is

referenced, but without any qualification. Those acting for the plaintiff have been

emphatic throughout in extending a measure of sympathy to the Duffys and equally

emphatic in emphasising that they are seeking no reliefs against them.

39. However, in respect of Palmerstown, the plaintiff is now on notice as I set out above, that

the Duffys executed a number of documents on the same day. The legal implications of

this documentation remains to properly explained. In particular this, in my view, raises

issues (and it may be at the hearing of this matter that all matters can be properly

clarified) as to how the plaintiff’s reliance upon an indenture of confirmation is to be

‘squared’ with what appears to be a simultaneous execution of a deed of mortgage by the

Duffys (on foot of which charges were registered against Palmerstown). In short this

plaintiff will have to satisfy a court as to its legal entitlements over Palmerstown in light of

the totality of documents held, as disclosed by the Duffys in this and the 2018

proceedings. Also the averment of this plaintiff that the Duffys owe monies (paragraph 15

40. Whilst, as set out above, the Hilliards (through Mr. Hilliard), prior to their obtaining legal

representation, filed a number of affidavits in respect of this matter. A number of the

issues that they raised within those affidavits (some of which were replied to in detail by

the plaintiff in his second affidavit) were not proceeded with at the hearing of this

application. Two points, however, were pressed strongly. The first, being the authority of

entitlement for the appointment of the plaintiff as receiver and particular emphasis is

placed on the case of McGarry & anor v. O’Brien [2017] IEHC 740 and also as to the

entitlement or more accurately authority of the signatory to the deed of appointment as

receiver, Ms Aisling McNicholas as the duly authorised signatory of the deed of

41. Regarding the capacity of Ms. McNicholas, the affidavit of Karl Smith sworn on the 11th

January, 2018 states Ms. McNicholas signed the deed of the appointment of the plaintiff

as receiver and that “she did so with the full authority and consent of Havbell DAC as its

42. It is noteworthy that the instrument of appointment of receiver itself, dated 22nd

February, 2016 in fact is an appointment by Havbell Limited, not Havbell DAC. Mr. Smith

avers that as a director of Havbell DAC, he was the charge holder who appointed the

plaintiff as receiver of the subject properties. It is not clear to me and there is no

evidence before the court of when Havbell Limited became Havbell DAC.

43. The case upon which the defendants rely as set out above in which Stewart J. finds as a

“In his affidavit of 31st May, 2017, Mr. Smith averred that Havbell Ltd converted to

Havbell DAC on 16th September, 2016…. The defendant was appointed on 23rd

September and the conversion occurred on 29th September. Therefore, it is the

constitution of Havbell Ltd that was in force at the time Mr. Smith executed the

44. Whilst, Mr. Smith correctly, as a director of Havbell, states that he is deposing on affidavit

to clarify matters solely with the knowledge of Havbell DAC as opposed to the plaintiff

“To that end I say and believe that when Aisling McNicholas signed the deed of

appointment of the plaintiff as receiver over the properties of the defendants, she

did so with the full authority and consent of Havbell DAC as its authorised

45. Mr. Smith in his affidavit does not clarify and I cannot find documents which assist me as

to when Havbell Limited “became” Havbell DAC, but relying upon the matters in the

judgment of Stewart J. and noting that there is no doubt but that the instrument of

appointment of the plaintiff receiver is dated 22nd February, 2016, there would appear to

be a difficulty in the designated authorisation of Mr. Smith. If I am correct in the matters

set out above, then the duly authorised signatory would have to be authorised by Havbell

Limited prior to it becoming Havbell DAC. I have no doubt that that position can be

readily clarified but until that has occurred, it would be unwise, particularly given the

specific averments of Mr. Smith, to assume the authorisation of Ms. McNicholas given that

there appears to be some confusion as to the entity who would have so authorised it.

46. In the case of McGarry, as cited above, being an application by plaintiffs seeking

interlocutory relief against a defendant receiver. Within that case the plaintiffs submit that

the receiver’s powers are set out within the Conveyancing Act, 1881 – 1911, save where

they are modified by the 2002 Mortgage Conditions. They argue that taking these matters

in concert that there is insufficient to empower a duly appointed receiver to take

possession, sell or dispose of the property. The defendant for his part relies upon the

Clause 6 of the mortgage documentation and also on the decision of Laffoy J. in Kavanagh

& anor. v. Lynch & anor. [2011] IEHC 348. As I construe that case, in essence, Stewart J.

had an issue as to the board approval by Mr. Smith in the appointment of the receiver. In

the view of Stewart J., the decision of Laffoy J. in Kavanagh by virtue of different

documentation raised a fair question to be tried with regard to the validity of the

appointment of the defendant. In my view, the facts of this case are more analogous to

the decision of Laffoy J. in Kavanagh in that, in my view, one must construe the terms of

the mortgage documentation coupled with the express provisions of the Conveyancing

Act, dating 1881 – 1911 which encompasses the facts and arguments contended for

47. However, for the reasons I am about to set out, I do not believe it appropriate for me to

issue a concluded view or decision in that regard. Within the pleadings, it is very clear

that this matter proceeds by notice of motion in the terms that I have set out at

paragraph 2 above. That notice of motion specifically references the grounding affidavit of

the plaintiff sworn on the 23rd March, 2017. Within the submissions advanced by the

plaintiff, the form of relief sought is drafted differently. However, I am proceeding upon

48. One point is striking. The motion issued the same day as the plenary summons and, in

my view, is an effort, perhaps in part only, to ensure that the matter proceed to some

form of summary judgement in respect of the properties. On the facts of this case and the

49. In my view had the plenary proceedings proceeded, many of the matters (particularly

with regard to Palmerstown) could have been clarified and distinguished at an earlier

stage, had there been a proper exchange of pleadings between the parties. Thereafter,

discovery would, in my view, have served to further served to clarify the position. In this

case after the issue of a plenary summons there was an exchange of extensive affidavits

50. I appreciate that counsel for the plaintiff in his submission suggested that the plaintiff

receiver was acutely aware of the position of the Duffys and suggested that the plaintiff

receiver would not do anything to their detriment without firstly seeking a court order.

There was even a suggestion that the rental monies would continue to be paid to them

pending resolution of all of the issues with regard to their interest in Palmerstown.

51. This, amongst other matters, is the reason why, in my view, it would be inappropriate on

the very specific and unusual facts of this case, to grant the form of interim/interlocutory

reliefs sought. If any form of summary type judgement is to be sought, then, in my view,

it is incumbent upon the plaintiff to ensure that all of the documentary evidence is

properly before the court. In this case, a number of the mortgages cited in the indenture

of appointment of receiver were not exhibited nor clarified. I appreciate that that

clarification may be straightforward but, in my view, all of the matters must be set out in

full. More importantly, the 2002 Mortgage Conditions upon which this plaintiff must, in my

view, rely for his appointment as it is within those conditions that the entitlement to

appoint the receiver resides was not exhibited by the plaintiff. The mortgage conditions

were, it appears, exhibited by the first named defendant but, as a minimum, I would

require confirmation from the plaintiff that these constitute the documentation upon

52. Moreover, the indenture of appointment of receiver appears to have been executed on

behalf of Havbell Limited – the document on its face is entirely clear in that regard. Mr.

Karl Smith, in his averments seeking to deal with the question raised by the defendants

as to the status of the duly authorised signatory Ms. McNicholas, states that she did so

with the authority of Havbell DAC. I appreciate that Mr. Smith was swearing the affidavit

on behalf of that entity, but his averment that Havbell DAC sanctioned the entitlement or

authorisation of Ms. McNicholas to execute the documentation does, I would suggest,

require clarification. Again, that may be a straightforward matter, but I again reiterate

that it is incumbent upon any plaintiff who issues plenary proceedings and then moves to

immediately seek substantial summary type relief to, within the affidavits and exhibits, to

set out all matters with great clarity and specificity. In my view, that has not occurred in

53. I appreciate the averments of the plaintiff and the submissions of his counsel that they

recognise the difficulty and special position of the Duffys. However, in my view, they have

insufficiently examined the matters of which they are now on notice with regard to the

Duffys and have dealt with this in more detail in my judgment with regard to the

proceedings issued by the Duffys (the 2018 proceedings). The solicitors for the plaintiff

did issue a letter seeking possession of the subject premises and did not, within that

letter, in any way seek to differentiate or clarify the position with regard to Palmerstown.

Nor was any separate correspondence issued to the Duffys in that regard. In short, the

plaintiff has failed to satisfy this Court as to his entitlement to proceed against the

Hilliard’s moiety interest in the Palmerstown property, again in the unique and special

circumstances of this case. The reason is not because of that moiety interest but rather

that the plaintiff (through Havbell DAC) are now on notice of matters which, in my view,

require clarification before this plaintiff can proceed. In short, there are significant unique

matters that arise with regard to Palmerstown which remain outstanding.

54. If it is the position, as counsel for the plaintiff has helpfully outlined, that it is envisaged

that the Duffys would retain their rental monies until the plaintiff had ascertained the

position further then, in my view, there can be no loss to that plaintiff in not granting the

interlocutory reliefs pending a trial of this matter which will enable and afford him time to

properly clarify the position with regard to that property. With regard to the Leixlip

property, the rent is, as was belatedly confirmed by the plaintiff, being received by him,

then again for the moment I do not think his position is prejudiced in that regard. With

regard to the Crumlin property, it appears that the defendants have not been cooperating

with the plaintiff receiver, that is regrettable, and they would have to proceed with

caution. That of course is a matter for their advisors but their attitude to date has been

55. In my view within this application, for the reasons set out above, the plaintiff has not

dealt comprehensively with all matters. In my view that militates against this Court

awarding what is in essence a form of summary judgment within plenary proceedings. I

am especially reluctant to do so where the notice of motion issued on the same day as

the plenary summons. There was no time afforded for any exchange of pleadings before

the notice of motion issued. As I say, in my view, on the facts of this case, the plenary

procedure could well have been of significant assistance in seeking to clarify the matters

prior to expending significant resources in seeking interlocutory relief in circumstances

where significant matters remain outstanding and still require clarification.

56. The plaintiff’s notice of motion is refused for the reasons as set out above. I would

welcome submissions by the parties as to a timetable for an expedited hearing of this

matter, once the parties have had time to consider their respective positions. Accordingly,

I will hear the parties as to any subsequent orders that might be made on the facts of this

case including any orders as to costs.

Result: Plaintiff’s notice of motion is refused.

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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Kavanagh v Hilliard & anor [2019] IEHC 797 (14 November 2019) URL: http://www.bailii.org/ie/cases/IEHC/2019/2019_IEHC_797.html Cite as: [2019] IEHC 797

High Court of Ireland Decisions