O'Brien and Another v Markham and Another

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Faherty
• Judgment Date: 27 June 2025
• Neutral Citation: [2025] IECA 135
• Docket Number: High Court Record No. 2022/5534P High Court Record No. 2022/153 MCA Court of Appeal Record No: 2024/128

Between/

Tom O'Brien and Promontoria (Finn) Limited

Plaintiffs/Respondents

and

Thomas Markham

and

Persons Unknown Occupying the Premises at 12 Woodford View, Clondalkin, Dublin 22

Defendants/Appellant

Promontoria (Finn) Limited

Applicant/Respondent

and

Thomas Markham

Respondent/Appellant

[2025] IECA 135

Faherty J.

Pilkington J.

Butler J.

High Court Record No. 2022/5534P

Court of Appeal Record No: 2024/127

High Court Record No. 2022/153 MCA

Court of Appeal Record No: 2024/128

THE COURT OF APPEAL

Possession of property – Error in law – Balance of justice – Appellant appealing against the judgment and order requiring him to deliver up possession of property – Whether the judge erred in fact and/or in law

Facts: The appellant, Mr Markham, appealed to the Court of Appeal against the judgment ([2024] IEHC 202) and order of the High Court (Dignam J) requiring him to deliver up possession of the property known as 12 Woodford View, Clondalkin, Dublin 22. The appellant maintained that the Judge erred in fact and/or in law: (1) in claiming that the appellant did not deny the debt owed to the second respondent, Promontoria (Finn) Ltd (Promontoria), and did not provide evidential correspondence; (2) in accepting a heavily redacted Global Deed of Transfer assigning the loan and mortgage to Promontoria; (3) in ignoring the fact that the evidence provided by the respondents was mostly predicated upon the use of hearsay evidence; (4) in accepting copies of copies of documents which were not attested to be true copies of the original documents; (5) in ignoring the fact that the appellant was denied the opportunity of inspecting original documents as set out in the appellant’s correspondence with the respondents; (6) in ignoring case law presented relating to the validity of the appointment of the receiver, Mr O’Brien; (7) in deciding that the respondents had established a strong case that the appellant owed a debt to Promontoria; (8) in deciding that McCleary v McPhillips [2015] IEHC 591 was not authority for the proposition of the appointment of a receiver for the purpose of purporting to exercise powers which he does not have qua receiver; (9) in deciding that Charleton v Scriven [2019] IESC 28 is not authority for the proposition that the respondents were in fact using the interlocutory application as a means of obtaining summary judgment; (10) in deciding that there was no question to be answered in relation to who was in possession and non-peaceable entry; (11) in accepting as appropriate a mortgage/charge dated 2006 in favour of First Active Plc and which was not registered as a burden on Folio 65271F in 2006 and only later in 2011 registered as a charge in favour of Ulster Bank Ireland Ltd.

Held by Faherty J that the appellant had not succeeded in establishing that the Judge erred when he found that the respondents had established a strong case that they would be likely to succeed in securing relief against the appellant at the trial of the action. She was satisfied that in considering where the balance of justice lay, the Judge was within his discretion in factoring in the fact that the appellant had been in receipt of considerable sums of money from renting out the property to tenants both before and after the receiver’s appointment, and yet made no payments or offers of payment on foot of the 2005 loan. She was satisfied, in relation to the adequacy of damages for the appellant, that the Judge acted entirely within his discretion in concluding that damages would be an adequate remedy in the event the respondents failed at trial. She held that the Judge’s assessment of the balance of justice could not be faulted.

Faherty J dismissed the appellant’s appeal and affirmed the order of the High Court.

Appeal dismissed.

UNAPPROVED

Judgment of Ms. Justice Faherty dated the 27 ^th day of June 2025

1 . This judgment concerns Mr. Markham's (hereafter “the appellant”) appeal in the proceedings bearing record no. 2022/5534P (“the injunction proceedings”) against the judgment ( [2024] IEHC 202) and Order of the High Court (Dignam J.) requiring him to deliver up possession of the property known as 12 Woodford View, Clondalkin, Dublin 22 (hereafter “the Property”). This was one of two appeals brought by the appellant, the other being his appeal against the judgment and Order of Dignam J. in the proceedings entitled “ Promontoria (Finn) Limited v. Thomas Markham” bearing record number 2022/153MCA (“the lis pendens proceedings”). Those proceedings were brought by Promontoria (Finn) Limited (hereafter “Promontoria”) pursuant to s. 123(b)(ii) of the Land and Conveyancing Law Reform Act 2009 (“the 2009 Act”) for an order vacating a lis pendens registered by the appellant on Folio DN65271F of the Register of Freeholders, County Dublin in which the Property is comprised. By Order dated 24 April 2024, Dignam J. ordered the lis pendens registered by the appellant on Folio DN65271F be vacated.

2 . At the hearing of the appeals (at which the appellant appeared on his own behalf) the appellant withdrew his appeal against the Order made in the lis pendens proceedings. Hence, this judgment is concerned only with the appellant's appeal against the Order made on 24 April 2024 in the injunction proceedings save that the Court will address the costs of the lis pendens appeal at the conclusion of the judgment.

3 . It should be noted that at the commencement of the appeal hearing the appellant sought an adjournment on the basis that he had not received the respondents' written legal submissions and also that he wished to file further affidavit evidence to exhibit a debenture which, he claimed, would impugn Promontoria's title. On investigation, it transpired that the appellant had received, but not opened, an email containing the respondents' written submissions which was sent to him approximately four weeks before the hearing date. A hard copy of the same submissions was sent by post a few days later to the address provided by the appellant in his affidavits. Following submissions from both sides, I delivered an ex tempore ruling in which the application for an adjournment was refused and, in consequence, the application to file a further affidavit was also refused.

The injunction proceedings

4 . The background to the injunction proceedings is helpfully set out in the judgment of Dignam J. (hereafter “the Judge”) and I gratefully adopt same.

5 . Pursuant to a loan offer dated 17 November 2005, which was accepted by the appellant on 10 December 2005, First Active Plc (“First Active”) advanced the appellant a loan facility of €260,000. The security for the loan was to be a mortgage over the Property. Ultimately, by a Deed of Mortgage dated 18 December 2006, the appellant charged the Property in favour of First Active as security for all sums which were then or might thereafter become due and owing by him to First Active.

6 . On 15 February 2010, Ulster Bank Ireland Limited (“Ulster Bank”) acquired all rights accruing to First Active on foot of any existing loan or security instruments pursuant to the terms of the Central Bank Act 1971 (Approval of Scheme of First Active Plc and Ulster Bank Ireland Limited) Order 2009 [S.I. 481/2009]. The mortgage was registered as a burden in favour of Ulster Bank on Folio DN65271F on 24 January 2011.

7 . On 29 September 2015, pursuant to a Global Deed of Transfer between Ulster Bank and Promontoria, Ulster Bank conveyed, assigned, transferred and assured to Promontoria all of its right, title, interest, benefit and obligation in and under the loans and related security identified in the Schedule to the Global Deed of Transfer.

8 . On 15 October 2015, Promontoria was registered as owner of the charge on Folio DN65271F.

9 . On 5 November 2015, Capita Asset Services wrote the appellant on behalf of Promontoria to advise him that his loan facility and security with Ulster Bank had been transferred to Promontoria.

10 . On 25 April 2018, the appellant having gone into default in relation to the loan facility, Promontoria wrote to him advising that the amount due and owing on foot of the facility was €359,652.11 and demanded repayment failing which its rights under the security would be exercised, including the appointment of a receiver.

11 . By Instrument of Appointment dated 25 May 2018, Promontoria duly appointed the first named plaintiff (Mr. O'Brien) as receiver over the Property.

12 . At the time Mr. O'Brien (hereafter “the Receiver”) was appointed, the Property was being rented out by the appellant. At the Receiver's request the tenants vacated the Property and the Receiver's agents secured possession on 17 April 2020. The Property was then boarded up and put up for sale by online auction.

13 . On 25 June 2020, the Receiver entered into a contract for sale in respect of the Property at a price of €231,000. The sale was due to close within four weeks of the contract for sale. Prior to completion, however, the purchaser's solicitors informed the Receiver of the existence of a pending application before the Property Registration Authority for the registration of a lis pendens. The appellant had in fact issued plenary proceedings on 15 July 2020 (bearing record no. 2020/5097P) and had on the same day filed a lis pendens in the Central Office and subsequently applied to the Property Registration Authority to have same registered as a burden on the Folio which was done on 22 July 2020.

14 . On 25 September 2020, the solicitors for Promontoria and the Receiver wrote to the appellant indicating that they had authority to accept service of the proceedings, and they requested that a copy of same be served on them. No response was received to that letter. On 30 November 2020 the solicitors wrote again requesting that the appellant deliver the plenary summons within ten days. That did not happen. Rather, the appellant's response was...