An Post v Harrington
| Jurisdiction | Ireland |
| Judge | Ms. Justice Baker |
| Judgment Date | 10 April 2019 |
| Neutral Citation | [2019] IEHC 438 |
| Court | High Court |
| Docket Number | [2018 No. 132 SP] |
| Date | 10 April 2019 |
AND
[2019] IEHC 438
Baker J.
[2018 No. 132 SP]
THE HIGH COURT
Rent – Receiver – Discharge – Third defendant seeking a declaration that she was entitled to recover or receive rental payments made by the first and second defendants between when she was appointed receiver and when, by deed, she was discharged from her role – Whether the third defendant was entitled to the benefit of any accrued rights until she was formally discharged
Facts: The first and second defendants, the Harringtons, commenced proceedings in which they sued Gulland Property Finance DAC and Mr Tennant arising from the appointment by Gulland of Mr Tennant as receiver and the alleged unlawful calling in by Gulland of loan facilities. Interpleader proceedings were commenced by the plaintiff, An Post, which, at all material times, was a tenant of one of the units owned by the Harringtons whose secured loans with Anglo Irish Bank were sold to Gulland. An order was made on 10 February 2016 that Gulland was not entitled to appoint a receiver. It transpired that Gulland, which had purchased the Harrington loans, had not acquired by deed the interest in the security at the relevant times. Mr Tennant was removed as receiver on 13 December 2016 after it became evident that the Deed of Transfer of 6 February 2015 from Irish Bank Resolution Corp. (IBRC), the successor in title of Anglo Irish Bank, to Gulland on foot of which Gulland had appointed Mr Tennant, did not include in the parcels clause the Harringtons’ lands. Gulland ultimately took a new deed of 6 October 2016 and became registered as owner of the charges on the relevant folios on 7 October 2016. Thereafter, the third defendant, Ms O’Dwyer, was later appointed receiver by Gulland, some months after Mr Tennant had been discharged from his office, and after the title had been rectified. Ms O’Dwyer was appointed receiver after Gulland had taken the benefit of the charge. Ms O’Dwyer applied to the High Court for a declaration that she was entitled to recover or receive rental payments made by the Harringtons between 24 February 2017 when she was appointed, and 31 July 2018 when, by deed, she was discharged from her role. She argued that her discharge from her position as receiver was prospective in effect and that she was entitled to the benefit of any accrued rights until she was formally discharged on 31 July 2018. It was argued that the right to claim rents up to the date of discharge was not lost by the discharge.
Held by Baker J that the receiver was correct to rely on the judgment of Laffoy J in In re Ronan [2013] IEHC 386; there, Laffoy J held that the appointment of a receiver carries with it the entitlement to sue for any rental arrears which might be outstanding at the date of appointment. Thus, Baker J held that Ms O’Dwyer was entitled to the monies representing the payment of rent by An Post which remained unpaid to her at the date of her second appointment on 8 August 2018.
Baker J held that Ms O’Dwyer was entitled to the arrears of rent up to the date of the deed of discharge, including the monies held in court to the credit of this suit.
Application granted.
This is an interpleader action and this judgment is given in the application of the third defendant, a receiver appointed by Gulland Property Finance DAC (‘Gulland’) for a declaration that she is entitled to recover or receive rental payments made by the first and second defendants between 24 February 2017 when she was appointed, and 31 July 2018 when, by deed, she was discharged from her role.
The interpleader proceedings were brought against the background of proceedings commenced by Michael and Anthony Harrington (‘the Harringtons’) bearing record number 2016/2445 P, in which they sued Gulland and Stephen Tennant, the then receiver, arising from the appointment by Gulland of Mr Tennant as receiver and the alleged unlawful calling in by Gulland of loan facilities. Two judgments were delivered by me in the background proceedings, Harrington v. Gulland Property Finance Ltd. (No. 1) [2016] IEHC 447 and Harrington v. Gulland Property Finance Ltd. (No. 2) [2018] IEHC 445.
The interpleader proceedings were commenced by An Post which, at all material times, was a tenant of one of the units owned by the Harringtons whose secured loans with Anglo Irish Bank were sold to Gulland.
In the events, an order was made on 10 February 2016 that Gulland was not entitled to appoint a receiver. It transpired that Gulland, which had purchased the Harrington loans, had not acquired by deed the interest in the security at the relevant times.
Mr Tennant was removed as receiver on 13 December 2016 after it became evident that the Deed of Transfer of 6 February 2015 from Irish Bank Resolution Corp. (‘IBRC’), the successor in title of Anglo Iris Bank, to Gulland on foot of which Gulland had appointed Mr Tennant, did not include in the parcels clause the Harringtons' lands. Gulland ultimately took a new deed of 6 October 2016 and became registered as owner of the charges on the relevant folios on 7 October 2016. Thereafter, Ms O'Dwyer was later appointed receiver by Gulland on 14 February 2017, some months after the former receiver, Mr Tennant, had been discharged from his office, and after the title had been rectified.
Ms O'Dwyer was appointed receiver after Gulland had taken the benefit of the charge and no argument was made in the course of the background proceedings nor in these interpleader proceedings that Gulland was not entitled to appoint Ms O'Dwyer as receiver. This judgment is directed to the single question of her entitlement to receive rents during her period of office.
An Post has, for a long number of years, been a tenant to the Harringtons under a commercial lease. It was not prepared to take the risk of paying the rent either to Mr Tennant, the Harringtons or, later, to Ms O'Dwyer. In those circumstances, it commenced these interpleader proceedings and, following an interlocutory hearing, an order was made that the rents be paid in court on 13 February 2018 pending the delivery of judgment in the primary action, which was delivered on 25 July 2018.
Thereafter, the issue of the entitlement to the rents was litigated and written and oral submissions made by counsel for Ms O'Dwyer and for the Harringtons.
The sole question for determination in this ruling is whether the receiver is entitled to those monies lodged in court in lieu of rental payments. The claim by the receiver is in respect of rents paid into court by An Post since the date of her first appointment in February 2017 until she was discharged by Deed of Discharge of 31 July 2018.
The receiver argues that her...
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Duggan v Supermacs Ireland Ltd
...the defendant’s liability to pay the rent due thereunder. The plaintiff argued that the decision of Baker J in An Post v Harrington [2019] IEHC 438 allowed him to rely on the settlement agreement in which the receiver disclaimed any rights acquired to arrears of rent. He relied on the UK de......