Paul Farrell v Everyday Finance Designated Activity Company, Ken Tyrell, Kieran Connolly, Rosemarie Connolly and the Property Registration Authority

CourtHigh Court
JudgeMs. Justice Stack
Judgment Date05 December 2022
Neutral Citation[2022] IEHC 698
Docket Number[Record No. 2022/5854P]
Paul Farrell
Everyday Finance Designated Activity Company, Ken Tyrell, Kieran Connolly, Rosemarie Connolly and the Property Registration Authority

[2022] IEHC 698

[Record No. 2022/5854P]


JUDGMENT of Ms. Justice Stack delivered on the 5 th day of December 2022.

Introduction and relief sought

This is an application for interlocutory relief against the third and fourth defendants who have purchased the property comprised in Folio 125860L of the Registrar, County of Dublin, being the property known as Unit B1, Baldonnell Business Centre, Baldonnell in the County of Dublin (“the Property”).


The Property was originally part of the property comprised in another Folio, 128255F and this was the number inadvertently repeated in the plenary summons, which was issued on 21 November 2022. At the commencement of the application for interlocutory relief, which I heard on Friday 25 November 2022, the summons was amended to refer to the correct Folio.


The interlocutory relief is sought against the third and fourth defendants (“the Purchasers”) and the fifth defendant (“the PRAI”).


The Purchasers bid for the Property at a publicly advertised online auction and are the transferees thereof on foot of a Transfer executed by the first defendant (“Everyday”, who is not a party to this application) and which is awaiting registration.


The relief sought against the Purchasers is set out in the notice of motion which issued on 21 November 2022, and is in the form of orders restraining them from:—

(1) Taking possession of the Property, marketing it for sale or selling it, or otherwise seeking to deal with it;

(2) Trespassing or entering upon or otherwise interfering with the plaintiff's quiet enjoyment of same;

(3) Holding themselves out as having any estate or interest in title to, or rights in respect of, the Property;

(4) Holding themselves out as having any entitlement to sell, rent, or otherwise grant any entitlement to possession of any portion of the Property;

(5) Making any contact with any current tenants of the Property without the prior written consent of the plaintiff.


In effect, therefore, the injunction seeks to restrain the Purchasers from exercising the rights which would normally be enjoyed as owners of the Property. The injunction against the PRAI is one seeking to restrain it from taking any steps in respect of the registration of the purported sale of the Property.

Factual background

By Deed of Mortgage and Charge made 24 November 2005 between the plaintiff as mortgagor and Allied Irish Banks plc (“AIB”) as mortgagee (“the Charge”), the plaintiff created a charge over this and other properties owned by the plaintiff. The covenants contained in the deed of charge entitled AIB and its successors to appoint a receiver over the secured premises, including the Property, but did not provide for the powers of such a receiver or the formalities by which he or she was to be appointed. In due course, AIB transferred the Charge to Everyday, who became registered as owner of the Charge on 15 August 2019.


By deed of appointment made 22 July 2021, between Everyday and the second defendant (“the Receiver”), the Receiver was appointed as such over assets of the plaintiff including the Property. The occupants of the Property, which include the plaintiff, was informed of this appointment by letter of the same date. It is not clear when precisely the plaintiff himself became aware of the Receiver's appointment, as he does not disclose this, but it must have been within a relatively short period thereafter.


The plaintiff claims in his affidavits that the Receiver unlawfully entered into possession of the Premises in November 2021. Again, the plaintiff must have been aware of this within a relatively short timeframe.


Insofar as the plaintiff asserts that such entry into possession was unlawful given the Receiver's limited powers under the Charge, it seems that he may be wrong as in Kavanagh v. Lynch [2011] IEHC 348, where Laffoy J. implied such a power in the case of a rent receiver. Insofar as he asserts that such entry into possession was unlawful given that it may not have been effected peaceably, he may well be correct (see Charleton v. Hassett [2021] IEHC 746). However, neither of those issues is material to this application against the Purchasers and the PRAI.


On 24 August 2022, the Receiver, acting as agent of the plaintiff pursuant to clause 8.01 of the Charge, purported to enter into a contract of sale with the third defendant (in trust). It was common case at the hearing of the interlocutory application that the Receiver had no power to do this, as he had no power of sale, and was a rent receiver only, enjoying the powers contained in the Conveyancing Act, 1881 (“the 1881 Act”).


If the application for injunctive relief turned on the authority of the Receiver to sign that contract, then I think it is clear that a serious question to be tried would have been established.


However, the problem for the plaintiff is that, by the time he applied for the injunction, the sale had been completed. By deed of transfer made 27 September 2022 (“the Transfer”), Everyday, as transferor and registered owner of the Charge which is registered as a burden on the Folio, transferred the Property to the Purchasers. The Transfer expressly states that Everyday is acting “in exercise of its power of sale” and expressly acknowledges receipt of the entire purchase price of €300,000 as set out in the contract purportedly signed by the Receiver. The Transfer has been lodged with the PRAI for registration.

The hearing of the application

The plaintiff raises a number of points as to why the PRAI should be restrained from registering the Purchasers as full owners of the Property in place of the plaintiff, in reliance on the Transfer, and why the Purchasers should not be allowed to enter into possession of the Property or to exercise any of the other rights that the person entitled to be registered as owner of registered land would normally enjoy. This includes receipt of the rents and profits, as well as a general power to manage the Property which is an investment property, albeit that one of the two sitting tenants is apparently the son of the plaintiff and the plaintiff himself is in occupation of a portion of the Property also.


The application for interlocutory relief canvassed a wide range of legal issues over the course of almost a full day's hearing on Friday 25 November 2022.


I indicated at the conclusion of arguments that I would refuse all relief. Insofar as the PRAI were concerned, I indicated that I was refusing relief because it was not necessary to grant injunctive relief against the PRAI as they had not yet processed the application for registration which had been lodged by the Purchasers. If and when that is done, and if the PRAI proceeds to register the Purchasers as full owners of the Property, the plaintiff may appeal that registration to the Circuit Court pursuant to s.19 of the Registration of Title Act, 1964, as amended. Accordingly, no injunction against the PRAI was necessary, and I expressed a doubt as to why the PRAI had been joined at all.


Insofar as the Purchasers were concerned, I indicated that I was satisfied to refuse the application for injunctive relief on the grounds of delay alone, but that I would give my written reasons in early course in deference to the submissions that had been made by counsel for all parties on the effect of the contract for sale and the Transfer, and of course so as to permit the plaintiff, should he wish to appeal my decision, to know the full reasons for it.


Before proceeding to give those reasons, it is convenient to set out the legal position of the parties, as this is a matter of settled law.

The legal position of the Purchasers

So far as the Purchasers are concerned, they are the full beneficial owners of the Property (see Coffey v. Brunel Construction [1983] I.R. 36). No legal title vests in them until registration of the Transfer is effected by reason of s. 51(2) of the Registration of Title Act, 1964, as amended (“the 1964 Act”) but in the interim, the plaintiff is a bare legal trustee for them. It is interesting to note that in Brunel, the principles applicable to a transferee who had paid the full purchase monies and was awaiting registration were described by Griffin J. (at p. 43) as “quite clear and have been followed for more than one hundred years”. It is therefore appropriate to take that settled position into account in considering an application for interlocutory relief.

The position of the Plaintiff and Everyday pursuant to the Charge

Clause 8.01 of the Charge provides that AIB and its successors, which of course includes Everyday, who is now registered as owner of the Charge, shall have the statutory powers conferred on mortgagees by the Conveyancing Acts (which is defined in clause 1.01 (b) to include the 1881 Act) subject to the variations and extensions provided for in the Charge. Those variations and extensions, insofar as material to the power of sale enjoyed by Everyday, are:

  • (a) The secured monies (whether demanded or not) shall be deemed to become due within the meaning and for all purposes of the Conveyancing Acts on the execution of the Charge.

  • (b) The power of sale shall be exercisable without the restrictions on its exercise imposed by s. 20 of the 1881 Act.


The net result of clause 8.01, therefore, is that Everyday, as a matter of law, enjoyed the power of sale provided for in s. 19(1)(i) of the 1881 Act which is:

“a power, when the mortgage money has become due, to sell, or to concur with any other person in selling, the mortgaged property, or any part thereof, either subject to prior charges, or not, and either together or in lots, by...

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1 cases
  • Start Mortgages DAC v Kavanagh
    • Ireland
    • High Court
    • 14 March 2023
    ...such can be effected without injustice to any party. 76 . The recent decision in Farrell v Everyday Finance Designated Activity Company [2022] IEHC 698 was relied on by the PRA. The PRA was a defendant in those proceedings and an injunction was sought to restrain it from taking any steps in......

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