Acting Consistently On Injunctive Relief

Author:Mr Gearóid Carey
Profession:Matheson
 
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A recent case on injunctive relief usefully restated the principles applicable to the grant of such relief as a matter of Irish law and reflected how practical considerations can impact on the court's determination. Swinburne v Geary1 involved an application by a receiver appointed on foot of a mortgage who sought to prevent the defendants from trespassing on a holiday home in County Cork. The plaintiff receiver had secured a buyer for the property and was required to answer a completion notice, therefore needing vacant possession. Background The defendants consented to a judgment of €1,227,047.98 in summary proceedings brought by a bank in respect of moneys borrowed from it to buy properties, including the holiday home involved in these proceedings. Since it was not intended to place the holiday home on the market until Spring 2013, the receiver did not object to the defendants using the holiday home during Winter 2012. However, in May 2013 the defendants engaged an individual to advise them about certain alleged overcharging by an unidentified financial institution. The receiver found a purchaser for the property, and on July 11 2013 requested the removal of contents from the holiday home. The individual engaged by the defendants left a voicemail message warning against any "illegal eviction", in response to which the receiver advised the defendants that they were not entitled to be in possession of the property. Subsequently, the first defendant contended that the mortgage on foot of which the receiver was appointed had been forged - an allegation which the court felt "could scarcely be more serious". In considering that allegation, the court observed that although the signing page of the mortgage was blank, an indenture supplemental to it had been executed by the defendants. Moreover, Judge Mac Eochaidh noted that it explicitly provided that "in all other respects, the beneficiary hereby confirms and ratifies the within indenture of mortgage/charge". He also observed that the original debt proceedings brought by the bank had been before the master of the High Court on five occasions and no such complaint had ever been made about the mortgage. The judge also noted that as part of this application in response to a query as to why - leaving questions of validity aside - the defendants objected to the sale of the holiday home by the receiver, he was told that the defendants were convinced that they could get a better price. However, the court found...

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