Ossory Road Enterprise Park Ltd v Rogers

• Jurisdiction: Ireland
• Judge: Ms. Justice Stack
• Judgment Date: 07 October 2022
• Neutral Citation: [2022] IEHC 556
• Court: High Court
• Docket Number: Record No. 2021/6816 P

Between

Ossory Road Enterprise Park Limited

Plaintiff

and

Declan Rogers, Tom Harty and (By Order) Rogers Recycling Limited

Defendants

[2022] IEHC 556

Record No. 2021/6816 P

THE HIGH COURT

Interlocutory relief – Lease – Validity – Plaintiff seeking interlocutory reliefs – Whether the plaintiff had raised a fair question to be tried

Facts: The plaintiff, Ossory Road Enterprise Park Ltd, sought various interlocutory reliefs against the first defendant, Mr Rogers, restraining him from “interfering with or trespassing” on the properties known as Units 1, 5A, 5B, 6, 7, 8, 8A, 9 and 10 of Ossory Industrial Estate, Ossory Road, Dublin 3 (the Premises), restraining him from collecting or attempting to collect rent from the occupiers of those Units, and restraining him from advertising for letting, letting or attempting to let those Units. On 8 April 2022, the High Court (Stack J) delivered an ex tempore judgment restraining the first defendant from collecting or attempting to collect rents from Units 5A, 5B, 6, 7, 8, 8A, 9, 9A and 10 and that the plaintiff should collect all rents from those Units and lodge them into its solicitors’ client account. Rogers Recycling Ltd (the Company) was alleged by the first defendant to be in receipt of rents from the various sub-units and containers into which Unit 1 appeared to be subdivided. The plaintiff’s position was that the tenants in the various Units were tenants of the first defendant, and that the entire Lease was a fiction to obstruct the taking of possession by the plaintiff. By Order made 8 April 2022, the plaintiff was given liberty to issue a motion seeking to join the Company as a defendant to the proceedings and to seek interlocutory relief in the like terms as had been sought against the first defendant. On 13 May 2022, the Company was joined as co-defendant to the proceedings. The motion against the Company concluded on 28 July 2022. In light of the detailed submissions made by counsel for the plaintiff and for the Company, Stack J reserved judgment.

Held by Stack J that the plaintiff had raised a fair question to be tried on the issues surrounding the validity of the Lease purportedly granted to the Company. She held that there was a fair issue to be tried as to whether the Company had been in occupation at all for the last few years and as to whether the sub-tenants were, in reality, sub-tenants of the first defendant. She held that there was also a fair question to be tried as to whether the bank gave its prior written consent to the grant of the Lease, as opposed to simply knowing it was granted in 2014.

Stack J held that the corollary of the Lease being invalid would be that the plaintiff was entitled to the rents and profits of the premises, including the monies paid by the sub-tenants; as owner in fee simple, the plaintiff would be entitled to enter into tenancy agreements with sitting tenants, which was what it sought to do after the sale to it closed. Stack J found that the evidence was that, insofar as the plaintiff had attempted to do this, the first defendant had disputed its entitlement to do so and sought to prevent it from entering into such agreements and from collecting rent. Had the first defendant not so acted, Stack J thought it was probable that, by this time, the plaintiff would have entered into direct leases or tenancies with those tenants. Stack J held that if the plaintiff showed at trial that it had title and if it was found that the Lease was invalid, then the plaintiff would have been deprived of the opportunity of receiving those rents from 7 December 2021 to date of trial and, therefore, those sums would possibly represent a loss to the plaintiff. Stack J held that the balance of convenience favoured the collection of rent by the plaintiff and its retention by the plaintiff’s solicitors pending trial.

Judgment approved.

JUDGMENT of Ms. Justice Stack delivered on the 7 ^th day of October, 2022 .

Introduction and factual background

1 . The proceedings were commenced by plenary summons against the first two defendants, the second being described by the plaintiff's director as an agent of the first defendant. However, the plaintiff has never served the second defendant with the proceedings and no application for interlocutory relief has been made against him.

2 . By notice of motion returnable for 20 January 2022, the plaintiff sought various interlocutory reliefs against the first defendant, restraining him from “interfering with or trespassing” on the properties known as Units 1, 5A, 5B, 6, 7, 8, 8A, 9 and 10 of Ossory Industrial Estate, Ossory Road, Dublin 3 (collectively, “the Premises”), restraining him from collecting or attempting to collect rent from the occupiers of those Units, and restraining him from advertising for letting, letting or attempting to let those Units.

3 . Unit 1 is divided into various sub-units known as Unit 1C, D, and so on, Unit 8A is part of Unit 8, and Unit 9A is part of Unit 9. There also appear to be shipping containers, used for storage, in respect of which the Company says it is the holder of a Lease. These are situate in the building of Unit 1 and also in the yard of Unit 1, though there is some uncertainty as to how many have been there in the past or are there at present.

4 . The interlocutory application was allocated a hearing date on 6 April 2022. On 8 April 2022, I delivered an ex tempore judgment restraining the first defendant from collecting or attempting to collect rents from Units 5A, 5B, 6, 7, 8, 8A, 9, 9A and 10 and that the plaintiff should collect all rents from those Units and lodge them into its solicitors' client account, noting the plaintiff's solicitor's undertaking to provide a monthly account so that rent by way of sworn affidavit to be delivered to the first defendant's solicitor and to the Company.

5 . Interlocutory relief was also sought in the notice of motion against persons having notice of such Order, and in particular, the respective occupants of the Units, from paying rent, or any sum in lieu of rent, to the first defendant but, this was not pursued. In any event, they were not named as defendants or served with the proceedings or the notice of motion so it is difficult to see how any order could have been made against them.

6 . However, it also transpired at hearing that it was alleged that Rogers Recycling Limited (“the Company”), a limited liability company of which the first defendant and his wife are the directors and shareholders, was alleged by the first defendant to be in receipt of rents from the various sub-units and containers into which Unit 1 appears to be subdivided. I refer to the evidence of that Lease and of the bank's knowledge of it in more detail below.

7 . While the plaintiff's position is that the tenants in the various Units are in fact tenants of the first defendant, and that the entire Lease is a fiction to obstruct the taking of possession by the plaintiff, no order could be made against the Company unless it was joined and until it was heard.

8 . Accordingly, by Order made 8 April 2022, the plaintiff was given liberty to issue a motion seeking to join the Company as a defendant to the proceedings and to seek interlocutory relief in the like terms as had been sought against the first defendant. The motion was to be returnable for 13 May 2022, and I made directions designed to ensure it could be heard on that date. On 13 May 2022, by consent, the Company was joined as co-defendant to the proceedings at the plaintiff moved for interlocutory relief against it. It should be noted that the original motion seeking relief against the first defendant had been adjourned insofar as Unit 1 was concerned, and so, the question of whether relief should be granted as against the first defendant personally in relation to Unit 1 also falls for determination.

9 . The motion against the Company was subsequently heard over three days, listed on dates to suit the parties, and concluded on 28 July 2022. In light of the very detailed submissions made by counsel for the plaintiff and for the Company, and notwithstanding that it is an interlocutory application, I reserved judgment.

Issues arising

10 . The plaintiff's essential position in these proceedings is that it has title to the Premises, having acquired them in a sale by private treaty from Everyday Finance DAC (“Everyday”), and is therefore entitled to the rents and profits thereof. The first defendant makes various complaints about the earlier holding of an online auction and the subsequent decision to sell to the plaintiff, but those issues are not material to this application, and it appears that the first defendant is litigating his complaints in other proceedings which do not appear to have been progressed. These issues were not the subject of any submissions in this application and I mention it only as background.

11 . While the Company asserts that it is a tenant of the first defendant, who originally mortgaged the Premises to Allied Irish Banks plc (“the bank”), the plaintiff relies on the long established principles as authoritatively restated by this Court (Dunne J.) in Fennell v. N17 Electrics Ltd. (in liquidation) [2012] 4 I.R. 634, a judgment recently approved by the Court of Appeal in Kennedy v. O'Kelly [2020] IECA 288.

12 . In response, the Company raises a number of arguments in order to resist interlocutory relief. First, it says that the title of the plaintiff was faulty when it issued the summons, as it had purportedly taken a conveyance of the Premises in fee simple when the mortgagee had in fact taken a mortgage by demise for 10,000 years.

13 . Of course, the mortgage contains the usual provisions to the effect that the freehold reversion was held by the first defendant in trust for the bank (which is defined in the mortgage to include its successors and assigns) with a power to appoint a new trustee or...