Corcoran v Eassda Group Ltd and Others, Fennell v Corcoran and Another, Cororan and Another v Promontoria and Another [No.1]

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian O'Moore
• Judgment Date: 04 December 2024
• Neutral Citation: [2024] IEHC 760
• Docket Number: 2008 547 S 2020 4050 P
• Court: High Court

Between

Joseph Corcoran

Plaintiff

and

Eassda Group Limited, Eassda Ireland Limited and Alastair Jackson

Defendants

and

Promontoria Eagle Limited and Ken Fennell

Notice Parties

Between

Ken Fennell

Plaintiff

and

Joseph Corcoran and Katherine Corcoran

Defendants

Between

Joseph Corcoran and Katherine Corcoran

Plaintiffs

and

Promontoria Eagle Limited and Ken Fennell

Defendants

[2024] IEHC 760

2008 547 S

2016 6043 P

2020 4050 P

THE HIGH COURT

Contract for sale – Building contract – Appointment of receiver – Plaintiff seeking the appointment of a receiver – Whether a receiver was validly appointed

Facts: Four different matters were listed for hearing before the High Court (O’Moore J). The first in time were proceedings taken by the Corcorans against Eassda and Mr Jackson seeking (among other things) specific performance of a building contract and a contract for the sale of land (the 2008 proceedings). Secondly, there were the 2016 proceedings initiated by Mr Fennell against the Corcorans seeking, inter alia, declarations that the contract for the sale of land and the building contract were at an end because of the alleged failure of the Corcorans to close them. Associated with that action were the 2020 proceedings taken by the Corcorans against Promontoria and Mr Fennell. On foot of a case management hearing, Sanfey J directed that the issues which the Corcorans wished to raise in the 2020 action were to be pleaded out as part of their defence and counterclaim in the 2016 proceedings. This was done, and the Corcorans delivered an amended and enhanced defence and counterclaim in that action. Finally, there were two motions brought by Mr Corcoran. The first of these sought the appointment of a receiver by way of equitable execution to the land constituting the plot of Number 6, Glenair Manor, Delgany, County Wicklow. The second sought the appointment of the same receiver to open space on the Glenair Manor estate. In their written and oral submissions, counsel for the Promontoria interests addressed three basic legal propositions.

Held by O’Moore J that the Corcorans had put forward no authorities on which they relied in disputing the three basic propositions. On considering those fundamental arguments (and the authorities supporting them), he decided in favour of the Promontoria interests. He made orders in terms of reliefs 20 and 21 of the statement of claim in the 2016 proceedings. As the claim for damages by Mr Fennell was not pressed at the hearing, and as no relevant evidence was put forward on his behalf, O’Moore J dismissed the receiver’s claims for damages. O’Moore J decided that the Corcorans were not entitled to any relief on the counterclaim and that nothing pleaded in the defence constituted any reason why Mr Fennell was not entitled to the primary relief sought by him in the main proceedings, namely an order that the contract for sale made between Mr Jackson and the Corcorans dated 4 August 2005 is at an end and an order that the building agreement made between Eassda Ireland Ltd, Mr Jackson and the Corcorans dated 4 August 2005 is at an end.

O’Moore J rejected the motion with regard to the appointment of a receiver to the plot at number 6 as Mr Fennell was validly appointed as receiver and the stated position of the proposed receiver was that he proposed to close the sale to the Corcorans by applying the set off which cannot legally or properly be done. As to the second motion (to appoint a receiver over the open space on the estate), O’Moore J held that this could not be decided without knowing the position of Wicklow County Council.

Relief granted in part.

JUDGMENT of Mr. Justice Brian O'Moore delivered on the 4th day of December 2024

1 . In August 2005 the Corcorans purchased what they describe in their legal submissions as “our new home in Glenair Manor, Delgany …” for €1,850,000. This completely run-of—the-mill transaction has given rise to seemingly endless litigation which has—for the moment at least—culminated in a nine-day hearing before me in April and May 2023. A very significant range of issues have been agitated in the pleadings. Even more issues have been thrown up during the course of the hearing notwithstanding the fact that they were not pleaded. The papers in the case run to five boxes of lever arch files (not including the transcripts of the hearings). The trial itself saw evidence being given by eleven witnesses. Much of this evidence has transpired to be of little or no relevance to the real matters that I have to decide.

2 . This was a hearing in which passions ran high. On the first day of the hearing, when Mr. Corcoran was unable to find his notes for the cross-examination of the first witness, he stated:-

“They were there when I left just after your adjournment. They are now gone. I don't have those questions. And I presume the other side now has them.”

3 . In fact there was no reason to believe that either counsel or the solicitors for the Promontoria interests (as I will describe the other side in the proceedings) had filched Mr. Corcoran's cross-examination notes. Nothing further was made of it by him.

4 . Equally, during the course of the evidence I was provided with an email sent by Mr. Corcoran some time before the trial was due to begin. This email was sent directly to a number of lawyers representing the Promontoria interests, including counsel. I will return to the contents of this communication. At this point, I will merely say that direct communication to counsel indicating that they will be subject to a criminal complaint in the event that they make certain assertions on behalf of their client is unique. This communication undoubtedly contributed to the fact that the atmosphere at the hearing was difficult.

5 . The end result has been that the period covered by the evidence runs from 2005 to 2023. The parties did not agree on what the issues were in the case. Even agreeing a chronology proved problematic. The original chronology prepared by the Promontoria side was stated to be “agreed with Joseph Corcoran”, but insertions made by Mr. Corcoran were not accepted as being accurate by the Promontoria interests.

6 . The range of legal issues ventilated in the proceedings will be apparent in a later portion of this judgment, when I deal sequentially with the matters raised in the Amended Defence and Counterclaim delivered on behalf of the Corcorans to the 2016 proceedings taken by Mr. Fennell against them.

7 . Before moving to the first substantive section of the judgment, I should explain who the parties are.

8 . As I already stated, the Corcorans are a married couple who entered into contracts in August 2005 to purchase a domestic dwelling in Delgany. There were two contracts. The first of these is a contract for the sale of land dated the 4 ^th August, 2005 between Alastair Jackson (as the vendor) and the Corcorans (as purchasers). The purchase price was €500,000, with a deposit payable of €50,000. By this agreement, the Corcorans agreed to purchase 6 Glenair Manor, Delgany, County Wicklow. By a building agreement of the same day, and made between the Corcorans of the one part and Keygo Properties Limited of the other part it was agreed that for a contract price of €1,350,000 Keygo Properties Limited would construct a dwelling house on the site in accordance with agreed plans. Keygo Properties Limited later changed its name to Eassda Ireland Limited. At all material times, that company was owned and controlled by Mr. Jackson.

9 . The Promontoria interests make the case that Mr. Jackson had mortgaged the relevant land on the 23 ^rd February, 2007, that the mortgage was registered against the Delgany land on the 9 ^th March, 2007, that on the 20 ^th June, 2014 the mortgage was acquired by Promontoria Eagle Limited and that on the 21 ^st August, 2015 Mr. Fennell was appointed receiver over certain assets of Eassda and certain assets of Alastair Jackson. It should be said that the Promontoria interests also claim that Promontoria acquired the relevant security from NALM, which had acquired such security from Bank of Ireland.

10 . The Promontoria interests also make the case that Eassda entered into a debenture with INBS, that this created a security over the book debts of the company, that this security was transferred ultimately to Promontoria, and that Promontoria appointed Mr. Fennell receiver over the interests of Eassda in the building contract with the Corcorans.

11 . The final player to be identified is Peter Stapleton, who appears to have been appointed a statutory receiver over certain assets of Alastair Jackson and of Eassda on the 8 ^th February, 2012 and the 6 ^th March, 2012 respectively.

12 . Finally, it should be noted that Mr. Jackson was made a bankrupt by order of the High Court of Justice in Northern Ireland on the 25 ^th April, 2012. Eassda has been placed in liquidation and since dissolved.

13 . This sort of narrative will be familiar to anybody who has dealt with litigation involving the financial crash of 2007 and 2008. Of greater novelty is the fact that, in these proceedings, Mr. Corcoran claims to have acquired the interest of McHenry Golf Limited in a judgment which that company obtained against Eassda Ireland Ltd and Mr. Jackson. The value of the judgment was €1, 050,000. On the 3 ^rd December, 2008, a judgment mortgage was registered against the lands at Delgany pursuant to the McHenry Golf judgment. Mr. Corcoran claims to have acquired the interest in McHenry Golf Limited in the judgment sum by Deed of Assignment dated 28 ^th September, 2018. This judgment mortgage ranks below the Bank of Ireland mortgage.

14 . There were four different matters listed for hearing before me. The first in time were proceedings taken by the Corcorans against Eassda and Mr. Jackson seeking (among other things) specific performance of the building contract and the contract for the sale...