Fennell v Corrigan

JurisdictionIreland
JudgeMs. Justice Pilkington
Judgment Date18 February 2020
Neutral Citation[2020] IEHC 79
Docket Number2014/6750P
CourtHigh Court
Date18 February 2020
BETWEEN
KEN FENNELL (AS RECEIVER OF CERTAIN ASSETS OF HUGH CORRIGAN)
PLAINTIFF
AND
HUGH CORRIGAN
DEFENDANT

[2020] IEHC 79

Pilkington J.

2014/6750P

THE HIGH COURT

JUDGMENT of Ms. Justice Pilkington delivered on the 18th day of February, 2020
1

This case considers the entitlement of the plaintiff receiver to possession of certain properties.

2

This matter has been extensively litigated before the courts. The numerous folders of documentation disclose some 34 court orders, arising from over 60 court applications in this and other proceedings arising out of the background facts and circumstances of this case. Even a brief perusal of the documentation shows it to be a vexed and difficult matter.

3

This hearing before this court lasted five days. The defendant appeared as a litigant in person with a McKenzie friend and called only one witness, a valuer and assessor Mr. Geaney.

Chronology

The background chronology is lengthy but, in my view, it is necessary to recite it in some detail.

4

In December 2006 IIB Bank plc advanced €2.17m to the defendant. Two properties owned by the defendant were furnished as security for the borrowings.

5

The deed of mortgage is dated 28th May 2007 between the defendant of the one part and IIB Bank plc of the other (‘the 2007 mortgage’).

6

The third schedule to that mortgage sets out the formal identification of the mortgaged properties. They comprise two properties; one at Kilmuckridge ( “the Kilmuckridge property”) and the other at Oulart ( “the Oulart property”), both in County Wexford.

7

Mr. Bannon, the chartered surveyor called by the plaintiff, confirmed that the Oulart property comprises an established convenience store, a takeaway (imaginatively titled “O My Cod”) and two first floor residential apartments. The Kilmuckridge property comprises a convenience store (now vacant) together with a first floor restaurant.

8

The loan facility was extended and restructured from time to time but, in any event, by letter of demand dated 16th May 2014 KBC Bank Ireland plc demanded the sum of €2,381,345.20 from the defendant.

9

Thereafter on 21st July 2014 the plaintiff was appointed receiver over the above properties.

10

The defendant takes issue with a significant number of matters, particularly with regard to the plaintiff's status as a receiver/manager, in light of the terms of the 2007 mortgage and his deed of appointment, whether KBC Bank Ireland plc (formerly IIB Bank plc) has been properly legally identified, plus issues with regard to alleged leases over both properties and a counterclaim for damages.

11

On the same day as the plaintiff's appointment as receiver, Mark Degnan (an accountant with Kavanagh Fennell, (now Deloittes) and working with the plaintiff on this receivership, attended at the Kilmuckridge property with a security firm (K-tech). It is clear that, from then on, matters did not proceed smoothly, which is to considerably understate the position. When Mr. Degnan attended the property, amongst other matters, he was handed a typed document dated 21st July 2014 headed “Notice” and set out in full below.

FAO Mark Degnan

Re: Attempt to trespass at the above property today (21st July 2014).

Notice to agent is notice to principle (sic) and notice to principle is notice to agent. (The letter is addressed from Hugh Corrigan, Main Street, Kilmuckridge, Gorey, Co. Wexford and phone and fax number are affixed to it). The letter reads as follows:

“Dear Mr. Degnan

I wish to confirm that under no circumstances do I consent to you or any other member of employees or agents entering my property.

As you have already been informed, there is an ongoing legal case since last October last with regard to a title problem. There is a question as to whether KBC have any right to appoint you or any other third party in this matter.

You are strongly advised to do your due diligence and check with the Bank's legal representatives, as to the validity of your appointment.

If you do enter our premises again, you will be liable for Commercial Penalty both on your company and you personally and your employees in the amount of €2m (two million euros) per entry.

Yours sincerely,

Hugh Corrigan

Signed: Hugh Corrigan

Dated: 21st July 2014”

Witnessed hand over by Simon Kavanagh and a signature is appended thereafter.

12

A number of persons whom I understand to be known as “The Land League” attended, with others, to assist the defendant together with Mr. Simon Kavanagh (the individual who signed the letter above as witness). The Gardaí, when called, said it was a civil matter and in the circumstances no further steps were taken. Mr. Degnan's evidence and that of Mr. Moloney and Mr. McGary of K-tech was to the effect that all considered it unwise in the circumstances to remain, they withdrew and possession was not effected.

13

One of the matters that had been raised by the defendant and others when Mr. Degnan attended on 21st July 2014 and subsequently, was that a court order was required to effect possession, together with allegations that the appointment of the receiver was invalid.

14

In any event the solicitors for the receiver issued a letter seeking possession on 29th July 2014 and thereafter this plenary summons issued on the 1st August 2014.

15

The plenary summons forms the basis of this litigation which, accordingly, has been in existence since 1st August 2014. On 5th August 2014 the application seeking interlocutory injunctive reliefs, was heard before McDermott J., on 21st August 2014. On 22nd August 2014 he granted an injunction comprising various orders essentially requiring the defendant to deliver up possession of the properties, restraining him, his servants or agents from obstructing the plaintiff in taking possession of the properties, securing and thereafter trespassing upon them, together with the furnishing of certain documentation comprising keys, alarm codes and so on. Thereafter the Order, affixed with a penal endorsement, was served upon the defendant.

16

On 27th August 2014 Mr. Degnan again attended the Kilmuckridge property, with K-tech personnel, to seek to enforce the terms of the 22nd August 2014 Order. Amongst other matters on this occasion the defendant contended that the Kilmuckridge property is leased to Melphia Enterprises Limited (“ Melphia“). Again, a group of individuals congregate, the Gardai are called and a number of individuals impede the locksmith, who attended with Mr. Degnan and K-tech, from changing the locks. Mr. Simon Kavanagh also attended and disputed the validity of the Order because it was not signed by the Judge and it was not accompanied by an affidavit. He contended that the receiver's representatives were trespassing, possession was refused and again the receiver's representatives departed.

17

On 30th August 2014 an appeal was lodged against the interlocutory injunction granted by McDermott J. This appeal was not progressed with any expedition by the defendant.

18

On 5th September 2014 an application issued for an order of attachment and committal against the defendant. On 30th September 2014 the defendant gave an undertaking before Hogan J. that he would comply with the interlocutory Orders of McDermott J. That undertaking was not complied with.

19

On 3rd October 2014 Melphia Enterprises Ltd, issued proceedings against this plaintiff (Record No 8418 P 2014) alleging the plaintiff was not entitled to possession of the properties the subject matter of the receivership. In separate proceedings (Record No 2017 IEHC 183) Laurence Corrigan issued proceedings against this plaintiff, alleging an invalid appointment of the receiver over the Oulart property. On 14th March 2017 Twomey J. dismissed the action as failing to disclose any bona fide question to be tried. In his ex tempore judgment Twomey J. noted a potential issue in respect of the plaintiff's locus standi and that on more than 40 occasions there had been applications before the High Court in relation to the appointment of this plaintiff over this defendant's property. By Order of Irvine J. on 26 January 2018 the appeal in respect of a motion by Laurence Corrigan seeking an order restraining this plaintiff from interfering with the Oulart property and challenging the validity of the receivership was refused.

20

In the defendant's absence, on 13th April 2015, an Order for his attachment issued (Binchy J.).

21

On 17th April 2015 Mr. Degnan attended the Kilmuckridge property (again with K-tech personnel) to seek possession – there are again a number of persons associated with the defendant present and what might be described as representations were made as to why possession should not be granted. Possession was not effected.

22

On 10th June 2015, the Order for committal of Binchy J. against the defendant, was stayed until 2nd July 2015 on his undertaking to give up possession by 1st July 2015. That undertaking was not complied with.

23

On 1st July 2015 Mark Degnan again attends the Kilmuckridge property with K-tech to seek possession and again is refused by persons associated with the defendant and again possession was not effected.

24

On 2nd July 2015 an Order of Binchy J. finds the defendant guilty of contempt and orders his committal to prison.

25

From 2nd July 2015 until January 2017 the defendant remains unlawfully at large and is not arrested throughout that period.

26

With regard to the extant Order of committal of the defendant, Sgt. White (Superintendent at Enniscorthy Garda Station) stated in evidence to this court that a considerable amount of garda time was occupied seeking to comply with the court order. He further confirmed his attendance before Binchy J. in May 2016, to explain why it had not been executed.

27

Again the plaintiff's agents (K-tech Security) attend on 5th October 2015 and on this occasion took peaceable possession of the Kilmuckridge property at...

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3 cases
  • Ken Fennell (as Receiver of Certain Assets of Hugh Corrigan) v Hugh Corrigan
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    • Court of Appeal (Ireland)
    • 5 October 2021
    ...was validly appointed as receiver and manager over the properties Facts: The High Court (Pilkington J), delivering a reserved judgment ([2020] IEHC 79), ordered that the plaintiff/respondent, Mr Fennell, was validly appointed as receiver and manager over two properties and directed that he ......
  • Allied Irish Banks Plc v Richard Finbarr Fitzgerald
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