Fenell v Boles
| Jurisdiction | Ireland |
| Judge | Mr. Justice Tony O'Connor |
| Judgment Date | 21 October 2020 |
| Neutral Citation | [2020] IEHC 534 |
| Court | High Court |
| Docket Number | [No. 2018 9790 P.] |
| Date | 21 October 2020 |
AND
[2020] IEHC 534
Tony O'Connor
[No. 2018 9790 P.]
THE HIGH COURT
There is now only remaining one question to be determined in these proceedings before submissions are made for final orders. The agreed issue is “whether the documents constituting the deeds of appointment dated the 24 October 2017 were effective to appoint the plaintiff as receiver over the properties identified … in specific deeds of mortgages”.
As the hearing on the 30 September 2020 progressed, both counsel with conspicuous ability, narrowed that issue down to whether the description and appearance of the instruments of appointment necessitated more than what was presented to each of the defendants in November of 2017 and throughout the prosecution of these proceedings. Particular attention was paid to the exchange of affidavits with exhibits for the interlocutory injunction application seeking orders for the defendants to vacate the said property. Counsel for both parties have informed the Court that the determination sought will allow the parties to make final submissions for all remaining orders to be made by this Court in the partially determined interlocutory injunction applications and for the plenary trial of these proceedings.
Donal O'Sullivan was examined and cross-examined about his position as director of Promontoria (Aran) Ltd. and his signature of the relevant five instruments of appointment of receiver on the 24 October 2017.
The instruments as originally exhibited were dated the 24 October 2017 and were described as a “deed of appointment of receiver”. On the last page of every copy and counterpart before the schedule containing a description of the property, the following wording appears: -
“IN WITNESS whereof PAL has hereunto set their respective hands as authorised signatories with authority to execute this Instrument of Appointment on the day and year above in WRITTEN and the Receiver has hereunto set his hand by way of receipt and acknowledgment of his appointment.
SIGNED by
_______________
Director
for and behalf of
PROMONTORIA (ARAN) LIMITED Duly authorised
_______________
Director”.
Following that layout is: -
“CONFIRMATION OF ACCEPTANCE OF APPOINTMENT AS RECEIVER
I, Ken Fennell HEREBY ACKNOWLEDGE receipt of this instrument of appointment upon the date aforesaid and accept the appointment thereby notified upon and subject to the terms and conditions above referred to and more particularly contained in the Security Document.
Dated this day of 2017 at o'clock a.m. / p.m.
SIGNED by the said Ken Fennell
in the presence of
_______________
Signature of Witness
_______________
Occupation of Witness
_______________
Address of Witness
_______________”
The plaintiff was also examined and cross-examined during which he explained that having obtained each instrument, duly signed by Mr. O'Sullivan, and advice from his solicitor, he signed the confirmation of acceptance which was witnessed in counterpart.
Although it was put to the plaintiff that the defendants were only given counterparts initially which either did not contain the signature of Mr. O'Sullivan or the signature of the plaintiff, no point is now taken about service of only counterparts which were not fully complete. Furthermore, there is no question now that Promontoria (Aran) Ltd. under each of the relevant mortgages or by operation of law, could have appointed the plaintiff under hand by a director on its behalf.
Counsel for the defendants submits at paras 9 and 10 of his final written “Outline Submissions” that Promontoria (Aran) Ltd., having chosen to appoint the plaintiff as receiver by deed, must comply with the formalities for appointment by deed.
“9. Having been served with incomplete deeds, the Defendants had no way to know if the formalities were complied with. The incomplete deeds were served in November 2017, the first time the defendants were informed that the deeds had been executed in counterpart was when the Plaintiff served his replying affidavit on the 11th February 2019. Once the counterparts were exhibited, the Defendants then considered whether the deeds had been executed or merely signed, this issue was tested at the interlocutory stage when the Plaintiff then sought to rely on the statutory power to appoint at least in three of the mortgages to appoint by writing and that they did not need a deed
10. It is submitted that the plaintiff is...
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Maurice Foley v Promontoria (Oyster) Designated Activity Company and Stephen Tennant
...as an instrument under hand, and therefore, Mr. Harper's appointment is valid. 42 Both parties referred at hearing to Fenell v. Boles [2020] IEHC 534, and I am satisfied that my findings are consistent with that 43 I would also add that it is not necessary to rely for my findings on para. 3......