Kavanagh v Morrin

• Jurisdiction: Ireland
• Judge: Ms. Justice Reynolds
• Judgment Date: 13 December 2018
• Neutral Citation: [2018] IEHC 720
• Docket Number: [2017/4898 P]
• Court: High Court
• Date: 13 December 2018

[2018] IEHC 720

THE HIGH COURT

Reynolds J.

[2017/4898 P]

BETWEEN

TOM KAVANAGH

PLAINTIFF

AND

TOM MORRIN

DEFENDANT

Order of attachment – Breach of order – Property – Plaintiff seeking an order granting liberty to the plaintiff to issue an Order of Attachment of the defendant – Whether the defendant failed to comply with an order of the High Court

Facts: The plaintiff, Mr Kavanagh, applied by Notice of Motion for an order pursuant to O. 44, r. 3 of the Rules of the Superior Courts and the inherent jurisdiction of the High Court granting liberty to the plaintiff to issue an Order of Attachment of the defendant, Mr Morrin, by reason of his failure to comply with an order of the High Court (Twomey J) made on 28th July, 2018. Pursuant to the said order, the defendant, his servants or agents and any other persons having notice of the said order, were directed to: “(a) Immediately surrender vacant possession of the property described in the Schedule to the Plenary Summons herein (“The Property”) to the Plaintiff; (b) Remove all vehicles, machinery and other chattels from the Property; (c) Remove all livestock and other animals from the Property”. The order further provided that the defendant, his servants and/or agents and all other persons having notice of the said order, were prohibited from: “(a) Impeding and/or obstructing the Plaintiff, his servants and/or agents in their efforts to take possession of the Property; (b) Impeding and/or obstructing the Plaintiff, his servants and/or agents in their efforts to secure the Property; (c) Impeding and/or obstructing the Plaintiff, his servants and/or agents in their efforts to sell the Property; (d) Trespassing or entering upon, or otherwise interfering with, the Property without the prior written consent of the Plaintiff; (e) Collecting or attempting to collect any payments or income in respect of the Property; (f) Holding themselves out as having any entitlement to sell, rent, or otherwise grant any entitlement to possession of, the Property; (g) Making contact with any prospective tenant or purchaser of the Property, without the prior written consent of the Plaintiff”. Finally, the order directed the defendant, his servants and/or agents and all other persons having notice of the said order to: “(a) Deliver up to the Plaintiff all keys and/or other security and access devices pertaining to the Property; (b) Provide details to the Plaintiff, including all relevant documentation, of all purported leases, licenses or other arrangements providing for occupation of the Property by any party in the period since 21 April 2006; (c) Provide details to the Plaintiff, including all relevant documentation, of all payments received or receivable in respect of the Property in the period since 30 September 2013”. The defendant issued a cross motion returnable for 1st November, 2018, seeking orders, inter alia, as follows: (a) preventing the plaintiff, his servants or agents from trespassing upon the property of the plaintiff, and (b) striking out the Plenary Summons of the plaintiff as it displayed no cause of action and/or was frivolous/vexatious and/or was an abuse of process.

Held by Reynolds J that, in circumstances where there was uncontroverted evidence on affidavit grounding the plaintiff’s application, she was satisfied beyond reasonable doubt that the defendant was in breach of the High Court order by: (a) failing to surrender vacant possession of the property to the plaintiff; (b) failing to remove all livestock and other animals from the property; (c) impeding and/or obstructing the plaintiff, his servants and/or agents in their efforts to take possession of the property; (d) impeding and/or obstructing the plaintiff, his servants and/or agents in their efforts to secure the property; (e) impeding and/or obstructing the plaintiff, his servants and/or agents in their efforts to sell the property; and (f) trespassing or entering upon, or otherwise interfering with, the property without prior written consent of the plaintiff. Reynolds J therefore directed that the plaintiff be at liberty to issue an Order of Attachment directed to the Commissioner and members of An Garda Síochána against the defendant.

Reynolds J held that, in respect of the defendant’s motion, she would refuse the relief sought therein.

Application granted.

JUDGMENT of Ms. Justice Reynolds delivered on the 13th day of December, 2018

Background

1 This is an application by Notice of Motion for an order pursuant to O. 44, r. 3 of the Rules of the Superior Courts and the inherent jurisdiction of the Court granting liberty to the plaintiff to issue an Order of Attachment of the defendant by reason of his failure to comply with an order of the High Court (Twomey J.) made on 28th July, 2018.

2 Pursuant to the said Order, the defendant, his servants or agents and any other persons having notice of the said Order, were directed to:

‘(a) Immediately surrender vacant possession of the property described in the Schedule to the Plenary Summons herein (‘The Property’) to the Plaintiff;

(b) Remove all vehicles, machinery and other chattels from the Property;

(c) Remove all livestock and other animals from the Property;’

3 The Order further provided that the defendant, his servants and/or agents and all other persons having notice of the said Order, were prohibited from:

‘(a) Impeding and/or obstructing the Plaintiff, his servants and/or agents in their efforts to take possession of the Property;

(b) Impeding and/or obstructing the Plaintiff, his servants and/or agents in their efforts to secure the Property;

(c) Impeding and/or obstructing the Plaintiff, his servants and/or agents in their efforts to sell the Property;

(d) Trespassing or entering upon, or otherwise interfering with, the Property without the prior...