Gyorgi Szabo v Tom Kavanagh
| Jurisdiction | Ireland |
| Judge | Mr. Justice Keane |
| Judgment Date | 31 October 2013 |
| Neutral Citation | [2013] IEHC 491 |
| Court | High Court |
| Date | 31 October 2013 |
[2013] IEHC 491
THE HIGH COURT
BETWEEN
AND
RESIDENTIAL TENANCIES ACT 2004 S4
RESIDENTIAL TENANCIES ACT 2004 S12(1)(A)
BAMBRICK v COBLEY 2006 1 ILRM 81 2005/3/573 2005 IEHC 43
TATE ACCESS FLOORS INC v BOSWELL 1991 CH 512 1991 2 WLR 304 1990 3 AER 303
ATKIN v MORAN 1871 6 IR EQ 79
CRIMINAL ASSETS BUREAU v BASE GARAGE SUPPLIES LTD & ORS UNREP CROSS 3.7.2013 2013 IEHC 302
BALOGUN v MIN FOR JUSTICE & ORS UNREP SMYTH 19.3.2002 2002/3/545
EUROPEAN PAINT IMPORTERS LTD v O'CALLAGHAN & ORS UNREP PEART 10.8.2005 2005/23/4851 2005 IEHC 280
CAMPUS OIL LTD & ORS v MIN FOR INDUSTRY & ORS (NO 2) 1983 IR 88 1984 ILRM 85
WESTMAN HOLDINGS LTD v MCCORMACK & ORS 1992 1 IR 151 1991 ILRM 833 1991/10/2491
COLLEN CONSTRUCTION LTD v BUILDING & ALLIED TRADES UNION & ORS UNREP CLARKE 16.5.2006 2006/12/2326 2006 IEHC 159
PASTURE PROPERTIES LTD v EVANS UNREP LAFFOY 5.2.1999 2000/15/5840
KIRWAN INJUNCTIONS: LAW & PRACTICE 2008 190
CONTECH BUILDING PRODUCTS LTD v WALSH & ORS UNREP FINLAY GEOGHEGAN 17.2.2006 2006/12/2318 2006 IEHC 45
MITCHELSTOWN CO-OPERATIVE AGRICULTURAL SOCIETY LTD v GOLDEN VALE FOOD PRODUCTS LTD UNREP COSTELLO 12.12.1985 1985/9/2534
FITZPATRICK v CMSR OF AN GARDA SIOCHANA 1996 ELR 244 1997/3/985
MARTIN v BORD PLEANALA & ORS 2002 2 IR 655 2003 1 ILRM 257 2002/16/3901
AMERICAN CYANAMID CO v ETHICON LTD (NO 1) 1975 AC 396 1975 2 WLR 316 1975 1 AER 504
INJUNCTIONS
Interlocutory injunction
Application for interlocutory injunction requiring deliverance of possession of apartment and restraining trespass on tenancy - Tenancy - Receiver - Obligation of candour when seeking interim ex parte relief - Duty to disclose material that might affect mind of court - Discretion of court to grant interlocutory relief - Bona fide question to be tried - Undertaking as to damages - Balance of convenience - Whether significant culpable failure to disclose matters - Whether entitlement to interlocutory injunction - Bambrick v Cobley [2005] IEHC 43, [2006] 1 ILRM 81; Tate Access Floors Inc v Boswell [1991] Ch 512; Atkin v Moran (1871) IR 6 Eq 79; Criminal Assets Bureau v BGS Ltd & Ors [2013] IEHC 302, (Unrep, Cross J, 3/7/2013); Balogun v Minister for Justice, (Unrep, Smyth J, 19/3/2002); European Paint Importers Ltd v O'Callaghan [2005] IEHC 280, (Unrep, Peart J, 10/8/2005); Campus Oil Ltd v Minister for Industry and Energy (No 2) [1983] IR 88; Westman Holdings Ltd v McCormack [1992] 1 IR 151; Collen Construction Limited v Building and Allied Trades Union & Ors [2006] IEHC 159, (Unrep, Clarke J, 16/5/2006); Pasture Properties v Evans, (Ex tempore, Laffoy J, 5/2/1999); Contech v Walsh [2006] IEHC 45, (Unrep, Finlay Geoghegan J, 17/2/2006); Mitchelstown Co-Operative Agricultural Society Ltd v Golden Vale Products Ltd, (Unrep, Costello J, 12/12/1985); Fitzpatrick v Commissioner of An Garda Síochána [1996] ELR 244; Meskell v Coras Iompair Éireann [1973] IR 121; Martin v Bord Pleanála [2002] 2 IR 655 and American Cyanamid Co v Ethicon Ltd [1975] AC 396 considered - Residential Tenancies Act 2004 (No 27), ss 4 and 12 - Landlord and Tenant Law Amendment Act Ireland 1860 (c CLIV), s 41 - Injunctions refused (2013/10002P - Keane J - 31/10/2013) [2013] IEHC 491
Szabo v Kavanagh
Facts: The plaintiff tenant sought interlocutory injunctions against the defendant receiver requiring him to deliver up possession of an apartment and restraining him from trespassing pending the determination of plenary proceedings. The defendant had been appointed receiver over the apartment in respect of a deed of mortgage and charge relating to tow other persons. The plaintiff contended that she was a stranger to the details of the charge and had been excluded from the apartment and had contacted the Gardai and had been arrested. The Court considered whether the undertaking of the plaintiff was sufficient.
Held by Keane J. that on the balance of convenience, the Court would refuse the interlocutory relief sought. Little evidence of the means or income of the plaintiff had been put before the Court. The plaintiff had misled the Court concerning her re-entry into the apartment and had been guilty of a culpable failure to disclose matters.
The plaintiff in this case seeks interlocutory injunctions against the defendant requiring him to deliver up possession of an apartment at the Bridge, Shankill, County Dublin, and restraining him from trespassing on the plaintiff s tenancy of that apartment, pending the determination of plenary proceedings in which the plaintiff seeks a number of reliefs against the defendant, including final injunctions to the same effect, as well as damages for trespass and for breach of the plaintiff's constitutional rights, to include aggravated, exemplary and/or punitive damages.
In the terse affidavit filed in support of her application, the plaintiff avers that she resided in the said apartment pursuant to a written lease dated the 24 th September 2008, between herself, as tenant, and one Troy Cremin, as landlord. A copy of the said lease is exhibited to the plaintiff's affidavit, and it recites, amongst other things, that the tenancy is to be for a term of 10 years; that there is to be a deposit of €1,200; and that the rent payable is to be €600 per calendar month.
The plaintiff goes on to aver that she has paid, and continues to pay, her rent on time - presumably, to Mr. Cremin - and that the said apartment is her dwelling. The plaintiff's affidavit also contains the laconic averment that Mr. Cremin occupied the apartment with her, although this arrangement is nowhere reflected in the terms of the lease exhibited.
In one of the two affidavits filed in opposition to the plaintiff's application for interlocutory relief, the defendant avers that he is a chartered accountant and insolvency practitioner of the firm Kavanagh Fennell, duly appointed on the 22 nd July 2013 as receiver over the said apartment, in respect of a deed of mortgage and charge between a lender named Dunbar Assets Ireland (formerly known as Zurich Bank) and the owners of that property, who are identified as two persons named Jackie Whelan and Anthony Gannon.
It is common case that, at some time after the plaintiff went out from the said apartment on the 14 th September 2013, the defendant caused the apartment door to be removed and the locks to be changed so that, when the plaintiff returned to the apartment in the early hours of the 15 th September 2013, she was not permitted to re-enter it and was, instead, provided by the defendant with two nights accommodation in a nearby hotel.
The plaintiff contends that she is a stranger to the details of the charge on the property in respect of which the receiver was appointed and, it emerged in the course of submissions made on her behalf in support of her application for interlocutory relief, having now been furnished with a copy of the relevant mortgage deed as an exhibit to the defendant's affidavit, wishes to challenge its validity by reference to the apparent absence upon its face of the common seal of Zurich Bank as mortgagee.
On the 19 th September 2013, the plaintiff applied for the injunctions now sought on an interim ex parte basis, which application was grounded on the affidavit of the plaintiff, sworn on an unspecified date though filed on the day of that application. The Court refused to grant orders ex parte on that date and instead gave liberty to the plaintiff to bring a motion returnable one week later so that the defendant might be represented and heard in answer to the plaintiff's claims.
The plaintiff issued her notice of motion that same day, grounded on the same short affidavit. By the time the motion was returned before the Court on the 26 th September 2013, the defendant had filed two affidavits in reply: that of the defendant sworn on the 25 th September 2013; and an affidavit of Kevin McGarry, sworn on the same date. The plaintiff did not avail of the opportunity to supplement her original grounding affidavit prior to the interlocutory hearing, nor did she seek an opportunity to reply to either of the affidavits filed on behalf of the defendant. In consequence, much of the evidence adduced on behalf of the defendant stands unchallenged for the purpose of the present application.
The plaintiff avers that she first discovered that the defendant had taken possession of the apartment at issue when she returned from work in the early hours of Sunday, the 15 th September 2013, although she does not provide any details whatsoever of her employment, income or means - an omission to which the Court will return below.
The plaintiff alleges that the defendant well knew that she was residing in the property when he took possession of it. The defendant acknowledges that a firm of private investigators retained by him had been watching the premises and accepts that the plaintiff was observed entering and leaving the apartment. However, the defendant contends that, in the circumstances more fully set out below, the identification of any person claiming lawful occupancy of the apartment (as opposed to the identification of persons entering and leaving it) had been made difficult, if not impossible.
The plaintiff avers that, having been excluded from the apartment, she contacted the gardaí, who informed her that any dispute concerning the lawful occupation of the apartment was a civil matter. In the next sentence of the same paragraph of her affidavit, the plaintiff further avers that:
"…on the 17 th of September 2013 I noticed that a window to my apartment was open and I re-entered my apartment. I say that it appears that the gardaí were called who arrested me, detained me in...
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...different conclusion on the adequacy of damages point. I agree with the approach taken by the High Court (Keane J.) in Szabo v. Kavanagh [2013] IEHC 491 (‘ Szabo’). In that case at para. 52 of his judgment, Keane J. stated as follows:- ‘Turning to the question of the adequacy of damages, I......
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...further ruling or comment other than that the plaintiff will be well minded to consider the judgment of Keane J. in Szabo v. Kavanagh [2013] IEHC 491. 22 Having considered the application for consolidation of proceedings last Friday and the difficulties which the plaintiff's present legal t......
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Harrington v Gulland Property Finance Ltd
...basis on which the receiver is a trespasser with no right to possession. 37 Keane J. in the recent judgment of Szabo v. Kavanagh [2013] IEHC 491 preferred the proposition that the courts would look at the facts of each case as evidenced in the approach adopted by Finlay Geoghegan J. in Con......
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McGarry v O'Brien
...rule of thumb that damages are not an adequate remedy for a trespass, he also relies on Keane J.'s decisions in Szabo v. Kavanagh [2013] IEHC 491 and Tennant v. McGinley [2016] IEHC 325, in which he advocates for a fact-based approach. As an example, the defendant relies on McGovern J.'s ......