Moorview Developments Ltd v First Active Plc

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 05 February 2010
• Neutral Citation: [2010] IEHC 35
• Docket Number: [2003 No.
• Court: High Court
• Date: 05 February 2010

[2010] IEHC 35

THE HIGH COURT

[No. 9018 P/2003]

Moorview Developments Ltd & Ors v First Active Plc & Ors

BETWEEN

MOORVIEW DEVELOPMENTS LIMITED, SALTHILL PROPERTIES LIMITED, VALEBROOK DEVELOPMENTS LIMITED, SPRINGSIDE PROPERTIES LIMITED, DRAKE S.C. LIMTIED, MALLDRO S.C. LIMITED, THE POPPINTREE MALL LIMITED AND BLONDON PROPERTIES LIMITED

PLAINTIFFS

AND

FIRST ACTIVE PLC AND RAY JACKSON AND BY ORDER BERNARD DUFFY

DEFENDANTS

MOORVIEW DEVELOPMENTS LTD & ORS v FIRST ACTIVE PLC & ORS UNREP CLARKE 6.3.2009 2009 IEHC 214

S (A) v S (G) 1994 1 IR 407 1994 2 ILRM 68 1994/6/1789

BELLAMY v SABINE 1857 1 DE G & J 566 44 ER 842

COMPANY LAW

Receivership

Companies - Properties owned by companies - Lis pendens registered by plaintiffs against receiver - Purpose of lis pendens - Notice of pending proceedings - Proceedings related to ownership of interest in land - Role of receiver - Interest of receiver in properties - Whether interest of receiver justified registration of lis pendens - Whether lis pendens improperly registered - Whether lis pendens should be vacated - Lis pendens vacated (2003/9018P - Clarke J - 5/2/2010) [2010] IEHC 35

Moorview Developments Ltd v First Active plc

PRACTICE & PROCEDURE

Lis pendens

Ownership and interest in land - Receiver - Land subject of proceedings - Proceedings related to ownership of interest in land - Multiple defendants - Plaintiff pursuing bona fide issue against particular defendant - Owner of land proper defendant - Whether lis pendens capable of registration against company in receivership - AS v GS [1994] 1 IR 407 applied and Bellamy v Sabine (1857) De G & J 566 followed - Lis pendens vacated (2003/9018P - Clarke J - 5/2/2010) [2010] IEHC 35

Moorview Developments Ltd v First Active plc

Facts The second named defendant was a receiver appointed by the first named defendant to a number of companies owned and controlled by the Cunningham Group. The second named defendant applied herein for an order vacating the lis pendens registered against him on behalf of the Cunningham Group. The second named defendant argued that he did not have an interest in the relevant lands and that these proceedings, so far as they related to him, did not involve a claim as against him relating to any interest in the lands concerned. On that basis he asserted that the lis pendens was improperly registered against him and ought to be vacated.

Held by Clarke J. in allowing the application: That no relevant authority was produced by either side in relation to the issue for consideration and it was therefore determined from first principles. The issue between the parties must relate to the ownership of some interest in land. Where there was more than one defendant in the proceedings, then in order that a lis pendens could be validly registered in respect of a particular defendant, then the issues which arose in the pleadings and which were being pursued by the plaintiff insofar as the relevant defendant was concerned, must have related to the ownership of some interest in land. In those circumstances, the position of a receiver or agent was not captured. The second named defendant herein, as receiver, did not own any interest in the relevant lands, which remained in the ownership of the company to which he was appointed receiver.

Reporter: L.O'S.

JUDGMENT of Mr. Justice Clarke delivered the 5th of February, 2010

1. Introduction

1.1 This is a judgment arising out of a further application in the above proceedings which have already been the subject of a number of judgments, including a judgment of the 6 ^th March, 2009, Moorview Developments Limited v. First Active Plc [2009] IEHC 214 (the "main judgment"), dealing with a substantial number of issues arising in both these proceedings and certain linked cases.

1.2 The application with which this judgment is concerned is one brought on behalf of the second named defendant ("Mr. Jackson") who, as is clear from the main judgment, is a receiver appointed by the first named defendant ("First Active") to a number of companies owned and controlled by Mr. Brian Cunningham ("the Cunningham Group")

1.3 On the 10 ^th August, 2007 a lis pendens was registered on behalf of the Cunningham Group against Mr. Jackson and also, it would appear, First Active. Mr. Jackson has applied for an order vacating the lis pendens so far as he is concerned. There is no similar application on behalf of First Active.

1.4 The application concerns what is, in reality, a very net question and I, therefore, turn to the issue between the parties.

2. The Issue

2.1 As has been pointed out, Mr. Jackson has been appointed as a receiver to certain of the companies within the Cunningham Group. In that capacity it is common case that he has, at the level of principle, an entitlement to cause any of those companies to sell any of the properties captured by any relevant mortgage debenture. It is clear, therefore, that, as a matter of fact, Mr. Jackson has the capacity to ensure that any relevant property is sold.

2.2 In addition, it is worth noting that, in circumstances which are set out fully in the main judgment, subsequent to the appointment of Mr. Jackson as receiver to the relevant companies, First Active decided to go into possession of certain properties itself in its capacity as a mortgagee and sought to sell the relevant properties as mortgagee in...