ACC Loan Management v Rickard

JurisdictionIreland
JudgeMr. Justice John MacMenamin
Judgment Date09 May 2019
Neutral Citation[2019] IESC 29
CourtSupreme Court
Docket Number[Appeal No. 2017/146],[S.C. No. 146 of 2017]
Date09 May 2019
BETWEEN:
ACC LOAN MANAGEMENT LIMITED DAC
PLAINTIFF/RESPONDENT
V.
MARK RICKARD
DEFENDANT/APPELLANT
AND
GERARD RICKARD
DEFENDANT

[2019] IESC 29

MacMenamin J.

O'Donnell Donal J.

McKechnie J.

MacMenamin J.

Dunne J.

Charleton J.

[Appeal No. 2017/146]

THE SUPREME COURT

Appointment of receiver – Payments – Evidence – Appellant seeking to appeal against the appointment of a receiver – Whether the appointment would be unjust

Facts: The High Court (Kelly J), on the 4th October, 2011, directed that a receiver by way of equitable execution be appointed in respect of such payments which the appellant, Mr Rickard, was due to receive from the Department of Agriculture, Fisheries and Food under the EU Farm Single Payment Scheme (SPS). Later, on the 13th July, 2015, the High Court (McGovern J) varied the 2011 order, with one which provided that, as and from 13th July, 2015 onwards, the receiver would be appointed over such payments as the appellant might henceforth receive from the Department under the EU Basic Payment Scheme (BPS), which was the successor of the SPS. On the 31st July, 2017, the Court of Appeal dismissed an appeal brought by the appellant against the 2015 judgment and order. The appellant applied for leave to appeal to the Supreme Court. The Court determined that issues of general public importance arose as to, first, the extent of the power of a receiver to collect monies over both equitable and legal interests, and, second, whether payments made to farmers under the BPS were in the nature of salary, thereby raising questions as to whether a receiver could be appointed over such payments.

Held by MacMenamin J that no evidence had been placed before the Court that the appointment would be unjust.

MacMenamin J held that he would uphold the judgments of the Court of Appeal.

Appeal dismissed.

Judgment of Mr. Justice John MacMenamin dated the 9th day of May, 2019
1

The issue before this Court has troubled common law judges in Ireland and elsewhere, for over a century. At one level, the question can be seen as identifying how, in appointing a receiver by way of equitable execution judgment, the courts should strike a fair balance between the rights and interests of judgment creditors and debtors. At a deeper level, the subject requires consideration of whether the enactment of the Judicature Acts in 1873 in England and Wales, and in 1877 in Ireland, extended the powers of the courts, or whether that legislation was purely procedural. This remains an area of some controversy.

2

On the 4th October, 2011, the High Court, (Kelly J.), directed that a receiver by way of equitable execution, (hereinafter ‘a receiver’), be appointed in respect of such payments which the appellant, Mark Rickard, was due to receive from the Department of Agriculture, Fisheries & Food, (‘the Department’), under the E.U. Farm Single Payment Scheme (SPS). This will be referred to as the ‘2011 Order’. Later, on the 13th July, 2015, the High Court, (McGovern J.) varied the 2011 order, with one which provided that, as and from 13th July, 2015 onwards, the receiver would be appointed over such payments as the appellant might henceforth receive from the Department under the E.U. Basic Payment Scheme (BPS), which was the successor of the SPS. This will be referred to as the ‘2015 order’. On the 31st July, 2017 the Court of Appeal dismissed an appeal brought by the appellant against the 2015 judgment and order. The appellant applied for leave to appeal to this Court.

3

This Court determined that issues of general public importance arose as to, first, the extent of the power of a receiver to collect monies over both equitable and legal interests, and, second, whether payments made to farmers under the BPS were in the nature of salary, thereby raising questions as to whether a receiver could be appointed over such payments. ( [2018] IESC DET 36)

The Judgments of the Court of Appeal
4

The Court of Appeal delivered two judgments, (Finlay Geoghegan J., Hedigan J.; Irvine J. concurring with both). In his High Court judgment in National Irish Bank Limited v. Graham [1994] 1 I.R. 215, Keane J. held that a receiver could only be appointed in cases where a debtor enjoys an equitable interest in property which cannot be reached by legal process. Having considered legal authorities not cited to the court in Graham, both Court of Appeal judges concluded that, when exercising the statutory jurisdiction conferred by s.28(8) of the Judicature Act, 1877, the courts, acting in accordance with the Rules of Court in the 21st Century, are not precluded from appointing a receiver by way of equitable execution, even where what is sought to be executed against is a legal interest in the property of a judgment debtor. Both judges relied on a number of persuasive English authorities, referred to later in this judgment. The judges also concluded that the law permitted that a receiver be appointed over the sums to which the appellant would have been entitled under the BPS Scheme.

5

Counsel for the appellant now argues that the established position reflected in Graham was that the appointment of receivers was confined only to cases where a judgment debtor held an equitable interest in property which will not be reached by legal process; that the law provided that a receiver could not be appointed over future payments; that the developments in English law took place against the background of the U.K. Supreme Court of Judicature Act, 1925, and later legislation; that the established case law related to more substantial choses in action than the ‘inchoate’ chose in action here; that future payments under the BPS should be excluded as a matter of policy; and that it was necessary that the appellant should have pursued other legal remedies under the Enforcement of Court Orders Act, as a pre-requirement to application to appoint a receiver.

Procedural Background to this Case
Pre-Trial
6

On the 17th December, 2007, the respondent, (‘ACC’), advanced monies to the two defendants named in the High Court proceedings. These were Mark Rickard, and his brother, Gerard Rickard. Mark Rickard, the first defendant, is the appellant to this Court. The evidence before the High Court established that the defendants were involved in tillage farming in a very substantial way in County Meath. Neither denied they had borrowed this large sum of money from the ACC, or that repayments had ceased. In correspondence prior to the initiation of summary summons proceedings, the Rickards” solicitors indicated that their clients” agricultural entitlements under the SPS were in the region of €170,000 per annum. At the time the loan was taken out, it was represented to the ACC that the farm business was generating sums in excess of €750,000 per annum by the sale of crops. Correspondence from the appellant's solicitors conveyed pledges of co-operation in repayment of the debt. These were unfulfilled. At no stage did the appellant, or his brother, give any reason for the absence of co-operation, or inform the court that the appointment of a receiver would be excessively onerous upon either of them.

Judgment in 2011
7

The summary summons was issued on the 1st December 2010, and admitted to the Commercial List by order dated the 11th February, 2011. On the 25th February, 2011, the High Court made an order by consent granting judgment to the ACC against each of the defendants in the sum of €1,064,747.66 (‘the judgment’). The defendants never denied the money was due. Mr. Mark Rickard, the appellant in this Court, accepts that he and his brother were legally advised at the time they consented to the judgment. Subsequently, the Bank asked the appellant for a statement of affairs. This was not provided. As of October, 2011, the judgment remained entirely undischarged.

8

An application to appoint a receiver in the High Court may be made ex parte, or on notice, (Order 50, Rule 6, Rules of the Superior Courts 1986, as amended). There is authority to the effect that such applications in relation to pension benefits should be made on notice. ( Campbell v. Usher [1913] 47 ILTR 165). So, too, with salaries. ( Clery v. O'Donnell [1944] 78 ILTR 190). The procedure is slightly different in the Circuit Court. (See, on this, Collins ‘Enforcement of Judgments’, Round Hall, 2014, Chap. 12). There is jurisdiction for an application to set aside such an order. The Court will have regard to the amount of the debt, the probable costs of the appointment, and the probable sum to be obtained.

Appointment of a Receiver in 2011
9

The properties available for execution in this case principally comprised various portions of lands in County Meath which the appellant co-owned with other members of his family. By 2011, the Bank had the benefit of security over properties comprised in Folios MH28333, and MH3354, pursuant to a mortgage/charge dated the 23rd January, 2008. These folios consisted of circa 215 acres of farmland and farm buildings. The Bank's view was that, even following any sale of the assets, there would be a shortfall on the debt due, and on the judgment. It decided to appoint a receiver over the SPS payments.

10

The application to appoint a receiver was moved on an affidavit by Shay Maguire, a manager in ACC. He deposed that, because of the extent of debts due under the judgment, and because of the nature of the assets which were immediately available to discharge or reduce the debt, it was necessary to proceed by way of an appointment of a receiver over payments to be made to the appellant under the SPS. He further deposed that print-outs from one website showed the appellant had received €162,656 under the SPS scheme. The evidence before the High Court was to the effect that the payments due to the appellant under the Scheme did not represent his sole source of income, and that it had been represented to the ACC that the defendants” farm...

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3 cases
  • Allied Irish Banks Plc v Bradley and Others
    • Ireland
    • High Court
    • 14 Abril 2023
    ...Supreme Court in the context of the appointment of a receiver by way of equitable execution in ACC Loan Management Limited v. Rickard [2019] 3 I.R. 557. The Supreme Court confirmed in that case that s. 28(8) of the 1877 Act used broad terminology and did not restrict the jurisdiction of the......
  • Allied Irish Banks Plc, AIB Mortgage Bank and Everyday Finance DAC v Tim Sheahan
    • Ireland
    • Court of Appeal (Ireland)
    • 29 Junio 2021
    ...met in that case. 47 ACC Loan Management Limited v. Rickard was appealed to the Supreme Court and its decision was given on 9 May 2019 ( [2019] IESC 29). The court rejected the appeal and upheld the judgments of the Court of Appeal. MacMenamin J. rejected the proposition that the BPS paymen......
  • Gerard Harrahill v John Kane
    • Ireland
    • High Court
    • 16 Marzo 2022
    ...of a receiver by way of equitable execution, was recently considered by the Supreme Court in ACC Loan Management Limited DAC v. Rickard [2019] IESC 29. In delivering the judgment of the court, MacMenamin J. concluded his judgment with the following observation at para. 84: “The end point of......
1 books & journal articles
  • Equity and the Law of Trusts in Ireland (7th edition) by Hilary Biehler
    • Ireland
    • Hibernian Law Journal No. 19-2020, January 2020
    • 1 Enero 2020
    ...the case law referenced, Biehler’s discussion of the efect and consequences of this determination are insightful. 15 Crown Prosecution 3 [2019] IESC 29. 4 [2016] 2 IR 704 (SC). 5 [2017] AC 467. 6 Biehler (n 1) 194. 7 ibid 194–204. 8 [2017] 3 WLR 1507, [2018] AC 631. 9 Hilary Biehler, ‘he Sc......

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