The Waterside Management Company Ltd v Kelly and Another

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 11 April 2013
• Neutral Citation: [2013] IEHC 143
• Court: High Court
• Date: 11 April 2013

[2013] IEHC 143

THE HIGH COURT

[No. 291 CA/2012]

Waterside Management Co Ltd v Kelly

BETWEEN

THE WATERSIDE MANAGEMENT COMPANY LIMITED

PLAINTIFF

AND

BRENDAN KELLY AND ASTA KELLY

DEFENDANTS

RESIDENTIAL TENANCIES ACT 2004 S5CCR O.39 r1

O'CONNELL v BORD PLEANALA UNREP PEART 19.2.2007 2007/48/10159 2007 IEHC 79S

OINCO SACI v NOVOKUZNETSK ALUMINIUM PLANT 1997 AER 523 1998 QB 406 1998 2 WLR 334

AHERN v O'BRIEN 1991 1 IR 421 1989/4/801

NATIONAL IRISH BANK LTD v GRAHAM 1994 1 IR 215 1994/5/1506

SHEPHERD, IN RE 1889 43 CH D 131 59 LJ CH 83 38 WR 133

HOLMES v MILLAGE 1893 1 QB 551 57 JP 551 62 LJQB 380

HONNIBALL v CUNNINGHAM 2010 2 IR 1

DCR O.10

PRACTICE AND PROCEDURE

Attachment of debts

Appointment of receiver by way of equitable execution - Appeal against appointment of receiver - Whether Circuit Court judge erred in appointing receiver over rents due from properties - Power to appoint receiver by way of equitable execution - Applicable rules - Whether power to appoint receiver reserved to where equitable interest in property held - Failure to exhaust legal remedies for executing judgment - Whether appointment just and convenient - O'Connell v An Bord Pleanála [2007] IEHC 79, (Unrep, Peart J, 19/2/2007); Soinco SACI v Novokuznetsk Aluminium Plant [1998] QB 406; Ahern v O'Brien [1991] 1 IR 421; National Irish Bank Ltd v Graham [1994] 1 IR 215; In re Shephard, Atkins v Shephard (1889) 43 Ch D 131; Holmes v. Millage [1893] 1 QB 551 and Honniball v Cunningham [2006] IESC 326, [2010] 2 IR 1 considered - Circuit Court Rules 2001 (SI 510/2001), O 39, r 1 - Appointment set aside (2012/291CA - Kearns P - 11/4/2013) [2013] IEHC 143

The Waterside Management Company Limited v Kelly

Facts The appellants owned a number of properties in an apartment complex. Proceedings had been commenced seeking to recover monies purportedly outstanding in respect of management fees. The respondent had been granted judgment in the sum of €9,684.05 in the Circuit Court. Thereafter the respondent sought the appointment of a receiver by way of equitable execution over rents purportedly due to the appellants from their properties which was granted by the Circuit Court. The appellants submitted that the remedy in question was only properly available where the judgment debtor was possessed of an equitable interest in the property in question and that the respondent had not exhausted all means of legal execution at their disposal before proceeding to seek equitable relief

Held by Kearns P in setting aside the order: The power of the court to appoint a receiver by way of equitable execution was well established, having been developed by the Courts of Chancery. The respondent had not exhausted all reasonably available avenues at law in seeking to execute the extant judgment in its favour. The sum in question was a relatively small one and the appointment of a receiver by way of equitable execution over the rents payable could not be deemed just and convenient in this instance and the appointment would be set aside.

1 RULING of Kearns P. delivered on the 11th day of April, 2013

BACKGROUND FACTS

2 This matter comes before the court by way of appeal from the order of Linnane J. sitting in Dublin Circuit Court, dated the 13 ^th day of December, 2012.

3 The respondent is the management company of the apartment complex known as The Waterside, situated at Charlotte Quay, Grand Canal Dock, Ringsend, Dublin 4. The appellants are a married couple and owners of a number of apartments within The Waterside complex. It appears in the pleadings that the appellants may also style their surname as O'Kelly.

4 These proceedings were commenced by way of Ordinary Civil Bill dated 13 ^th May, 2010, seeking to recover monies purportedly outstanding in respect of management fees incurred between 1 ^St October, 2009 and 30 ^th September, 2010.

5 On 16 ^th March, 2011, the respondent was granted judgment in the sum of €9,684.05, together with costs, pursuant to the within Civil Bill.

6 On foot of this judgment, an execution order was extracted as against the goods of the appellants, with their address being cited as 22, Simmonscourt Road, Dublin 4. This execution order was returned to the respondent by the Sheriff of the City of Dublin, on 13 ^th September, 2011, marked nulla bona.

7 On 29 ^th November, 2012, the respondent lodged an ex parte docket seeking various reliefs, primarily the appointment of a receiver by way of equitable execution over rents purportedly due to the appellants from five apartments in The Waterside complex, but also directions as to service, including service by way of email.

8 Ms. Ryan, the person being proposed as receiver, is a managing agent of the respondent, charged with duties relating to the maintenance and upkeep of The Waterside complex, including the collection of service charges. Ms. Ryan had sworn an affidavit on 28 ^th November, 2012, setting out various matters relating to the efforts which had been made to effect legal execution of the judgment debt. Also on 28 ^th November, 2012, Mr. David Frost, a director of the respondent swore an affidavit as to Ms. Ryan's suitability to act as receiver.

9 Of particular note is Ms. Ryan's averment to the effect that she had called to the appellants' address at 22, Simmonscourt Castle on "at least" twelve occasions, each time finding the appellants not to be present, together with her having sent correspondence by post to that address, but without response. Ms. Ryan averred that the appellants no longer resided at this address and were not in contact with her. Mr. Ronan Brennan, solicitor for the respondent, also averred in his affidavit sworn on 29 ^th November, 2012, as to efforts made to notify the first named appellant of the proposed application to appoint Ms. Ryan as receiver, by telephone and by email.

10 Upon the matters coming before the learned Linnane J. sitting in Dublin Circuit Court, on 29 ^th November, 2012, an order was granted directing that the ex parte docket be treated as a notice of motion, being made returnable for 13 ^th December, 2012, and directing that the said notice of motion, together with any other documents requiring to be served, be furnished by hand to the solicitor for the herein appellants (who were defendants in those proceedings): Mr. Cunningham of Suite 212, Capel Building, Mary's Abbey, Dublin 7.

ORDER OF THE CIRCUIT COURT

11 On 13 ^th December, 2012, having heard the parties and satisfied herself as to the existence of the debt, the learned Circuit Court Judge ordered, insofar as relevant:-

12 1) That Margaret Ryan of Ulverton Road, Dalkey, County Dublin be appointed as receiver by way of equitable execution over so much of the rents payable by the tenants in occupation of Apartment 5, Apartment 56, Apartment 81, Apartment 140 and Apartment 141, all of which apartments are situate at the apartment development known as The Waterside, Charlotte Quay, Ringsend, Dublin 4, as will be required to satisfy the said judgment in the Dublin Circuit Court on the 16 ^th day of March 2011.

13 2) That a copy of this order be served on the defendants by email and that a copy of this order be served on the defendants' solicitor, Mr. Cunningham, of Suite 212, Capel Building, Mary's Abbey, Dublin 7.

14 3) That a copy of this order be served on the tenants in occupation of Apartment...