Ken Fennell (as Receiver of Certain Assets of Hugh Corrigan) v Hugh Corrigan

JurisdictionIreland
JudgeMr. Justice Murray
Judgment Date05 October 2021
Neutral Citation[2021] IECA 248
Docket NumberCourt of Appeal Record No. 2020/104
Year2021
CourtCourt of Appeal (Ireland)
Between
Ken Fennell (As Receiver of Certain Assets of Hugh Corrigan)
Plaintiff/Respondent
and
Hugh Corrigan
Defendant/Appellant

[2021] IECA 248

Whelan J.

Haughton J.

Murray J.

Court of Appeal Record No. 2020/104

High Court Record No. 2014/6750P

THE COURT OF APPEAL

CIVIL

Order for possession – Damages – Declaratory relief – Respondent seeking an order for possession – Whether the respondent 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 was entitled to possession of those properties. Pilkington J also granted a declaration that the plaintiff was not bound by any purported leases executed by the defendant/appellant, Mr Corrigan, his servants or agents in respect of the properties. The defendant’s counterclaim, which arose from alleged damage and acts of trespass said to have been caused to the properties by the plaintiff or his agents, was dismissed. The notice of appeal subsequently served by the defendant addressed a wide range of complaints arising from the High Court judgment. Those were reduced in his written submissions to three headings of objection: that the appointment of the plaintiff as receiver was invalid, that leases had been granted in respect of some of the properties and that the plaintiff was thus not entitled to possession thereof, and that there had been a lack of fair procedures in the hearing before the High Court. At the hearing of the appeal the appellant made no submissions under the third of those headings but sought to add a new ground of appeal, to adduce new evidence and/or to advance a new argument. Each was said to arise from an order made by the Court of Appeal on 19 February 2021 in distinct proceedings brought against the defendant by IIB Bank plc (KBC Bank Ireland plc). The defendant also sought to advance a claim based upon the proposition that the security on foot of which the plaintiff was purportedly appointed was a ‘Welsh Mortgage’ and, accordingly, prohibited by the provisions of the Land and Conveyancing Reform Act 2009.

Held by the Court of Appeal (Murray J) that the defendant had not explained how any alleged failure of the plaintiff to show or confirm properties of the defendant on the deed of appointment or High Court order of 22 August 2014 affected either the validity of his appointment, his entitlement to possession of those properties having regard to the provisions of the mortgage or to any other relief claimed in the proceedings. It was not evident to Murray J on what basis issues around the attempts made by the plaintiff to enforce an interlocutory order made by McDermott J on 22 August 2014 were relevant to the judgment of Pilkington J under appeal. Murray J did not see any basis on which the conduct of an internal banking review by a person subsequently appointed as a receiver caused any conflict of interest. Murray J could see no basis on which any aspect of the High Court decision was vitiated by the alleged failure of the trial judge to take cognisance of the actions of K-Tech Security Ltd and its employees who (the defendant said) admitted that they did not hold a static licence which prohibited entry by force into the private property of the appellant. Murray J held that there was no issue of European law in play in the case, and the defendant had failed to identify any basis on which the decision of the European Court of Human Rights in Rousk v Sweden (Application No. 27183/04), had any relevance to the appeal.

Murray J held that the appeal should be dismissed. It was Murray J’s preliminary view that the defendant had been entirely unsuccessful in the proceedings and must, therefore, bear the costs of the plaintiff in both the High Court and in the Court of Appeal.

Appeal dismissed.

NO REDACTION NEEDED

JUDGMENT of Mr. Justice Murray delivered on the 5 th day of October 2021

I FACTS AND ISSUES
Introduction
1

. By letter dated 11 December 2006, IIB Bank p.l.c (now KBC Bank Ireland p.l.c) (‘the Bank’) agreed to advance an amount of up to €2,150,000 to the defendant for the purpose of refinancing existing ACC Bank plc facilities. The facility was renewed thereafter by a series of letters, the last of which was dated 15 September 2011. The advances were secured by a mortgage dated 28 May 2007 (‘the mortgage’) in respect of two properties – a Londis Supermarket and restaurant in Kilmuckridge, Co. Wexford, and a supermarket, takeaway and two apartments in Oulart, Co. Wexford (‘the Kilmuckridge Property’ and ‘the Oulart Property’ respectively and ‘the properties’ collectively). By letter dated 16 May 2014 the Bank demanded repayment of €2,831,345.20, being the full amount of capital and interest then said to be outstanding on the facilities. By deed of appointment dated 21 July 2014 the Bank purported to appoint the plaintiff as receiver pursuant to the powers conferred by the mortgage.

2

. In these proceedings (issued on 1 August 2014) the plaintiff sought an order granting him possession of the properties, together with injunctive relief preventing the defendant from obstructing the plaintiff in getting in and collecting the secured assets and damages. A declaration was also sought that a puported lease of the Kilmuckridge property to Melphia Enterprises Ltd. (‘Melphia’) was invalid as against the plaintiff. The defendant counterclaimed asserting that the plaintiff's appointment as receiver was invalid and claiming damages on this basis and as a result of various events that were alleged to have occurred in the course of the receivership. A number of interlocutory applications were brought in the action directed to enabling the plaintiff obtain access to the secured lands. In January 2017 the plaintiff obtained possession of the Kilmuckridge property.

3

. As of the date of the trial, the evidence was that there was a sum in the region of €2.5M outstanding on this facility. The trial lasted five days, Pilkington J. delivering a detailed reserved judgment ( [2020] IEHC 79), ultimately ordering that the plaintiff was validly appointed as receiver and manager over the properties and directing that he was entitled to possession of those properties. She also granted a declaration that the plaintiff was not bound by any purported leases executed by the defendant his servants or agents in respect of the properties The defendant's counterclaim (which arose from alleged damage and acts of trespass said to have been caused to the properties by the plaintiff or his agents) was dismissed.

4

. The defendant represented himself at the hearing in the High Court. The notice of appeal subsequently served by him addressed a wide range of complaints arising from the High Court judgment. These were reduced in his written submissions to three headings of objection – that the appointment of the plaintiff as receiver was invalid, that leases had been granted in respect of some of the properties and that the plaintiff was thus not entitled to possession thereof, and that there had been a lack of fair procedures in the hearing before the High Court.

5

. At the hearing of this appeal the appellant was represented by counsel and solicitors who made no submissions under the third of these headings but sought (as it was variously described) to add a new ground of appeal, to adduce new evidence and/or to advance a new argument. Each was said to arise from an Order made by this Court on February 19 2021 in distinct proceedings brought against the defendant by the Bank. The defendant's advisors also sought to advance a claim based upon the proposition that the security on foot of which the plaintiff was purportedly appointed was a ‘Welsh Mortgage’ and, accordingly, prohibited by the provisions of the Land and Conveyancing Reform Act 2009.

The mortgage, the deed of appointment and the defendant's argument
6

. The deed of appointment of the plaintiff as receiver provides, where material, as follows:

“In pursuance of the powers contained in the Mortgage dated 28 th May, 2007 made between HUGH CORRIGAN OF … (the “Borrower”) of the one part and IIB Bank plc who pursuant to Section 33 of the Central Bank Act, 1971, transferred its mortgage loans to KBC BANK IRELAND PLC and has its registered address at … (“the Bank”) of the other part (hereinafter referred to as the “Mortgage”), the security constituted by the Mortgage having become enforceable, we, the Bank, do hereby appoint KEN FENNELL of … Dublin 4 (“the Receiver”) to be Receiver of and over, all the undertaking, property and assets of the Borrower referred to and charged by the Mortgage to enter upon and take possession of the same in the manner as specified in the said Mortgage and the Receiver shall be entitled to exercise all of the powers conferred on him by the said Mortgage and by law. It is hereby declared that the Receiver shall be the agent of the Borrower who shall be solely responsible for the Receiver's acts, defaults and remuneration”.

(Emphasis added).

7

. As evident from this, the appointment was made ‘ in pursuance of the powers contained in the Mortgage dated 28 th May 2007’. The relevant provision of the mortgage is clause 9.1:

‘At any time after the Chargor so requests all the security hereby constituted becomes enforceable, the Bank may from time to time appoint under seal or under the hand of the duly authorised officer of the Bank any person or persons to be receiver and manager or receivers and managers (hereinafter called a “Receiver” which expression shall where the context so admits include the plural and any substituted receiver and manager or receivers and managers) of the Secured Assets or any part or parts thereof and may from time under seal or under the hand of the duly...

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