Fennell v Corcoran and Another

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr Justice MacGrath,Mr. Justice Alexander Owens
• Judgment Date: 31 July 2026
• Neutral Citation: [2026] IECA 156
• Docket Number: Court of Appeal Record Numbers: 2025/217 2025/244 High Court Record No. 2008/547S High Court Record No. 2016/6043P High Court Record No. 2020/4050P

Between/

Ken Fennell

Respondent

and

Joseph Corcoran and Katherine Corcoran

Appellants

Between/

Joseph Corcoran

Plaintiff/Appellant

and

Eassda Group Limited, Eassda Ireland Limited and Alastair Jackson

Defendants/Respondents

and

Promontoria Eagle Limited and Ken Fennell

Notice Parties

Between/

Ken Fennell

Plaintiff/Respondent

and

Joseph Corcoran and Katherine Corcoran

Defendants/Appellants

Between/

Joseph Corcoran and Katherine Corcoran

Plaintiffs/Appellants

and

Promontoria Eagle Limited and Ken Fennell

Defendants/Respondents

[2026] IECA 156

Costello P.

MacGrath J.

Owens J.

Court of Appeal Record Numbers: 2025/217

2025/234

2025/244

High Court Record No. 2008/547S

High Court Record No. 2016/6043P

High Court Record No. 2020/4050P

THE COURT OF APPEAL

Contracts – Settlement – Specific performance – Appellants seeking have the second respondent’s claims dismissed – Whether the appellants lacked standing

Facts: The second respondent, Mr Fennell, in 2016, instituted proceedings against the appellants, Mr and Mrs Corcoran, seeking orders to bring contracts to an end because of the alleged failure of the appellants to pay sums due in compliance with the terms of the settlement which the High Court had decreed should be specifically performed. The appellants challenged the validity of the receiver’s appointments, denied that his appointments had been properly proved, denied that they were in breach of their obligations and claimed entitlement to complete the contracts by way of set off of a judgment debt which the first appellant had acquired from another company, McHenry Golf Ltd, in 2013. That judgment, which was obtained against Mr Jackson and entities including Eassda Ireland Ltd (the Company), was registered against Mr Jackson’s lands, including a site at no. 6 Glenair Manor, Delgany, County Wicklow (the site), in the Registry of Deeds on 3 December 2008. In 2020 the first appellant was substituted as plaintiff in the proceedings taken by McHenry Golf Ltd. He brought an application within those proceedings for an order appointing a receiver by way of equitable execution over the site and to direct that the receiver so appointed close the contract for the sale of the site by way of set off. The appellants brought an application by way of motion to have the second respondent’s claims dismissed. The High Court delivered three judgments in which the trial judge rejected the appellants’ contentions, concluding that the appellants lacked standing to challenge the validity of contracts and instruments to which they were not parties. He found that the evidence called on behalf of the respondents had established that the securities and debts had been sold to the first respondent, Promontoria Eagle Ltd, and that the second respondent had at the relevant times the required entitlement to close the sale to the appellants. The trial judge dismissed the appellants’ claim that they were entitled to close the sale by way of set off and concluded that at no time were the appellants ready to close by paying the sums due. He dismissed the appellants’ counterclaim for damages and dismissed their motions. By order, perfected on 1 July 2025, he brought the contracts to an end. The appellants appealed to the Court of Appeal against this and other orders made by the trial judge.

Held by MacGrath J that, regarding appeal 2025/217: the trial judge was correct in his conclusion that the appellants did not enjoy standing to challenge the validity of the mortgage or the debenture; on the basis of the authorities expressly referred to in his judgment, the appeal against his finding and conclusions concerning the claimed right of set off must be dismissed; and no appeal was brought from the ruling and order of Murphy J - therefore, his order was binding on the parties. In light of those conclusions, MacGrath J held that the appellants’ appeal against the trial judge’s decision on the counterclaim must fall. Regarding appeal 2025/234, MacGrath J did not accept that an error had been established on the part of the trial judge in dismissing the application to appoint a receiver by way of equitable execution over the site. Regarding appeal 2025/244, MacGrath J held that the suggested error on the part of the trial judge as to how he treated the notice of motion was unjustified in light of the procedures which were adopted by the parties in advance of and during the trial.

MacGrath J dismissed appeals 2025/217, 2025/234 and 2025/244.

Appeal dismissed.

UNAPPROVED

JUDGMENT of Mr Justice MacGrath delivered on the 31 ^st day of July 2026

INDEX

Para

(1) Summary	- 4 -
Securitisation	- 6 -
Three Proceedings	- 7 -
Three Motions	- 9 -
Four Judgments	- 9 -
Perfected Orders	- 10 -
The 2008 Proceedings	- 10 -
Correspondence post the Order of Murphy J: The set off claim is introduced	- 11 -
(2) Appeal 2025/217 — The 2016 Proceedings	- 12 -
The Trial Judge's Findings of Fact	- 12 -
The Core Legal Issues	- 14 -
(3) Notices of Appeal	- 16 -
Grounds of Appeal	- 17 -
(4) The Submissions of the Parties	- 17 -
(5) Core Issue 1 — The standing of the appellants and their entitlement to challenge the asserted rights of the respondents	- 18 -
Unpleaded Issues	- 21 -
Crystallisation	- 22 -
Proof	- 24 -
(6) Core Issue 2 – The Offer to Set Off the McHenry Golf Judgment in Satisfaction of the Sums Due Under the Contracts and the Subsequent Settlement Agreement	- 26 -
Submissions on Appeal	- 27 -
Core Issue 2 — Discussion	- 27 -
(7) Core Issue 3 – The Entitlement of the Second Respondent to Declarations that the contracts be at an end (including a consideration of the 2008 Proceedings and the decision of Murphy J)	- 28 -
Submissions on Core Issue 3	- 29 -
Core Issue 3 — Discussion	- 30 -
Readiness to Complete	- 30 -
(8) Counterclaim	- 31 -
(a) The Pleadings	- 31 -
(b) The Judgment	- 31 -
(c) The Notice of Appeal	- 31 -
(d) Submissions on Appeal	- 32 -
(e) Discussion and Conclusion	- 33 -
(9) Appeal No 2025/23	- 34 -
The application for the appointment of a receiver by way of equitable execution over the site	- 34 -
(10) Appeal No 2025/244	- 36 -
The Application for Declarations and Orders Regarding the Validity of Mr Fennell's Appointment and Striking out his Claims to bring the Contracts to an End	- 36 -
Discussion	- 37 -
(11) Decision on all Appeals	- 38 -
(12) Costs	- 38 -
APPENDIX I – SUBMISSIONS ON CORE ISSUE ONE – THE VALIDITY OF THE RECEIVER'S APPOINTMENTS AND AUTHORITY	- 38 -
The Appellants' Submissions	- 38 -
The Respondents' Submissions	- 42 -
APPENDIX II – SUBMISSIONS ON CORE ISSUE 2 – SET OFF	- 45 -
The Appellants' Submissions	- 45 -
The Respondents' Submissions	- 45 -
APPENDIX II – SUBMISSIONS ON CORE ISSUE 3 – THE ENTITLEMENT OF THE RESPONDENT TO DECLARATIONS THAT THE CONTRACTS BE AT AN END — MATTERS RELATING TO THE ORDER OF MURPHY J.	- 46 -
The Appellants' Submissions	- 46 -
The Respondents' Submissions	- 47 -

(1) Summary

1 . These are appeals by Mr and Mrs Corcoran (‘the appellants’) against decisions and orders of O'Moore J in the above-entitled and “linked proceedings”. The genesis of this long running dispute lies in what ought to have been the completion of straightforward buy and build contracts entered into on 4 August 2005. The contracts concerned the purchase by the appellants of a site at no. 6 Glenair Manor, Delgany, County Wicklow (hereafter “the site”) from Mr Alastair Jackson, a Northern Ireland resident, and for the construction of a dwelling house on the site by a company controlled by Mr Jackson, Keygo Properties Limited. This entity later changed its name to Eassda Ireland Limited; a company registered in Northern Ireland (hereafter “the Company”). The purchase price for the site was €500,000, with a deposit payable of €50,000. The building contract price was €1,350,000, the deposit for which was €135,000. The former contract is referred to as “the contract for sale of the site”, the latter “the building contract” and collectively, “the contracts”.

2 . The Company and Mr Jackson raised funds for construction works in respect of this and other projects. Loan facilities were provided by financial institutions secured by way of a debenture in the case of the Company, and in Mr Jackson's case, by a mortgage over the site.

3 . The deposits were paid by the appellants but difficulties and disputes arose, primarily concerning the completion of works. In 2008 specific performance proceedings ( not linked proceedings) were instituted by the appellants. They were compromised in 2009. Terms of settlement were signed. Further problems were encountered leading to those proceedings being re-entered by the appellants in 2010. A hearing took place in December 2012 and in March 2013 Murphy (Roderick) J made an order for specific performance.

4 . The financial crash and its consequences were ongoing during this period. The Company, Mr Jackson and the financial institutions all fell into difficulty. Between October and December 2010 the loans and securities were acquired by National Asset Loan Management Limited (“NALM”), a subsidiary of the National Asset Management Agency (“NAMA”). They appointed a statutory receiver. In 2014 NAMA sold the loans and securities to Promontoria Eagle Ltd (“the first respondent”), who in 2015 appointed Mr Fennell (“the second respondent”) as receiver over the site and certain assets of the Company, which it was claimed included the building contract.

5 . Notwithstanding the order for specific performance, the contracts were not completed in accordance with the terms of the settlement. In 2016 the proceedings now under...