Walsh and Another v Everyday Finance trading as Link Financial and Another

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Rory Mulcahy
• Judgment Date: 30 April 2025
• Neutral Citation: [2025] IEHC 245
• Docket Number: Record No.: 2024/4575 P

Between:

Michael Walsh and Alice Mullins

Plaintiffs

and

Everyday Finance DAC T/A Link Financial and Ken Tyrell

Defendants

[2025] IEHC 245

Record No.: 2024/4575 P

THE HIGH COURT

Dale of property – Injunction – Serious issue to be tried – Plaintiffs seeking to restrain any sale of the properties pending determination of the proceedings – Whether the plaintiffs had identified a serious issue to be tried

Facts: The plaintiffs, Mr Walsh and Ms Mullins, owned five plots of land, four in Cork, one in Clare (the Properties). Two of the plots of land comprised farmland farmed by the plaintiffs. The other three plots of land were commercial forestry. The first defendant, Everyday Finance DAC, was registered as owner of a legal charge over all five Properties, pursuant to mortgages executed between the plaintiffs and AIB Bank plc, the benefits of which had been assigned to the first defendant. The plaintiffs were in default in repaying the loans for which the mortgages had been given as security. The first defendant contended that the benefit of the loans had also been assigned to it and, in light of the plaintiffs’ default, they were entitled to sell the Properties pursuant to the powers under the mortgages. The second defendant, Mr Tyrell, the receiver appointed over each of the Properties pursuant to the mortgages, offered the Properties for sale through an online auction website. The plaintiffs applied to the High Court seeking to restrain any sale of the Properties pending determination of the proceedings. The plaintiffs advanced three arguments in support of the injunction, each of which they contended amounted to a serious issue to be tried. First, they complained that the manner of sale proposed by the defendants would result in the Properties being sold at a significant undervalue. Second, the plaintiffs contended that the second defendant’s appointment as receiver over one of the properties involved was defective. The final point relied on by the plaintiffs was that the documentation relied on by the defendants did not establish that the interest in the loans and mortgages has been transferred to the first defendant.

Held by Mulcahy J that, on the basis of the evidence adduced at the interlocutory stage, the plaintiffs had identified a serious issue to be tried on the question of whether the defendants had discharged their respective duties as mortgagee and receiver in their efforts to sell the Properties. Mulcahy J held that an order restraining the defendants from attempting to sell the farmlands in the manner proposed pending the determination of the proceedings, in all the circumstances, gave rise to the least risk of injustice. Mulcahy J held that an order restraining the sale of the forestry lands was not appropriate, having regard to the adequacy of damages as a remedy for any loss which may be occasioned if those lands were sold at an undervalue.

Mulcahy J held that the grant of the injunction in relation to the farmland would be subject to the plaintiffs’ undertaking to progress the proceedings with all reasonable expedition and not to interfere with the defendants’ efforts to sell the forestry lands. Mulcahy J held that the defendants should have liberty to apply to lift or vary the injunction in the event of any failure by the plaintiffs to abide by such undertakings.

Application granted.

JUDGMENT of Mr Justice Rory Mulcahy delivered on 30 April 2025

Introduction

1 . The plaintiffs own five plots of land, four in Cork, one in Clare (“ the Properties”). Two of the plots of land comprise farmland, currently being farmed by the plaintiffs. The other three plots of land are commercial forestry. The first defendant is registered as owner of a legal charge over all five Properties, pursuant to mortgages executed between the plaintiffs and AIB Bank plc, the benefits of which have been assigned to the first defendant.

2 . The plaintiffs are in default in repaying the loans for which the mortgages had been given as security. The first defendant contends that the benefit of the loans has also been assigned to it and, in light of the plaintiffs' default, they are entitled to sell the Properties pursuant to the powers under the mortgages. The second defendant, the receiver appointed over each of the Properties pursuant to the mortgages, has offered the Properties for sale through an online auction website. In this application, the plaintiffs seek to restrain any sale of the Properties pending determination of the proceedings.

3 . For the reasons set out below, I have concluded that, subject to certain conditions, the plaintiffs are entitled to an interlocutory injunction restraining the sale of the two plots of farmland. However, the plaintiffs are not entitled to an interlocutory order restraining the sale of the forestry lands.

Background

4 . By facility letter dated 25 September 2009 (“ the Loan Offer”), AIB Bank plc (“ AIB”) offered various loan facilities to the plaintiffs by way of refinancing or amalgamation of existing facilities, together with an overdraft account. The Loan Offer was made up of seven separate facilities (“ the Loans”). Under the terms of the Loan Offer, the security for these facilities was to be ‘all sums’ mortgages over the five folios in which the plots of land the subject of these proceedings are comprised (“ the Mortgages”), together with two further all sums mortgages over unrelated properties.

5 . The Loan Offer was accepted by the plaintiffs in writing on 8 December 2009. Three of the Mortgages were existing mortgages at the date of the Loan Offer, two further mortgages were executed in November 2009.

6 . On 2 August 2018, by a global deed of transfer (“ the first Deed of Transfer”), AIB transferred its interest in the Loans and the Mortgages the subject of these proceedings to the first defendant. On 8 July 2021, the first defendant sold its interest in the Loans and the Mortgages back to AIB.

7 . However, on 4 October 2022, the interest in the Loans and the Mortgages was again transferred to the first defendant by a further global deed of transfer (“ the second Deed of Transfer”).

8 . In respect of each of these three transfers, the buyer and seller sent the plaintiffs the necessary ‘hello’ and ‘goodbye’ letters required by section 28(6) of the Supreme Court of Judicature Act 1877.

9 . In his affidavit grounding the application, the first plaintiff admits that the plaintiffs fell into arrears in repaying the Loans and that a meeting was held with AIB in November 2013 to discuss their indebtedness. A period of negotiation took place, which proved unsuccessful. By letters dated 10 and 11 September 2014, AIB demanded repayment of all sums then due. Summary summons proceedings were issued by AIB in 2016 ( AIB Bank plc v Michael Walsh and Alice Mullins, Record No.: 2016/466S) but have not been progressed.

10 . Following notification that the Loans and Mortgages had been assigned to the first defendant for a second time, the plaintiffs sought to engage with the first defendant, however there was no resolution regarding their indebtedness. It is not disputed that the plaintiffs have made no payment in respect of the Loans since 2018. By letters dated 22 February 2024, the first defendant, through its agent, BCM Global ASI Limited, made a formal demand for repayment of the sums of €1,811,375.51 and $330,934.17 said to be owing on foot of the Loans.

11 . On or about 4 April 2024, the second defendant, who had been appointed as receiver over the Properties following the first transfer to the second defendant, was discharged as receiver. He was, however, by further deed of appointment of the same date, once again appointed as receiver over the Properties. The plaintiffs contend that they have had no contact from the second defendant since he notified them of this re-appointment. The letter notifying the plaintiffs of his appointment is dated 4 March 2024, but as it refers to his discharge and re=appointment, the letter would appear to be incorrectly dated. The plaintiffs have not made any issue of this discrepancy.

12 . Notably, one of the mortgages pursuant to which the second defendant was appointed as receiver charges not just farmland but also the family home. The second defendant's appointment pursuant to that mortgage expressly excludes the family home from its scope.

13 . The second defendant was also appointed to provide certain services as agent of the first defendant pursuant to an agency agreement. The agency agreement expressly excluded services undertaken by the second defendant in his capacity as receiver. It did, however, include services relating to the maintenance, and the marketing and contracting for sale, of certain assets, including the five properties the subject of this application.

14 . Each of the Properties was offered for sale by the second defendant in his capacity as agent of the first defendant in an online auction at 4 pm on Wednesday, 28 August 2024. The listing for each property gives a brief description and an advised minimum value (“ AMV”). The total AMV for the two plots of farmland was stated to be €830,000, and the total AMV for the forestry lands was €515,000.

15 . By way of example, the description of one of the parcels of farmland refers to it as “ excellent quality lands”, gives its location, and continues as follows:

“ The lands are contained within folio CK68271F Plan 3 and amount to c. 33.18 ha – c. 81.98 acres. The subject lands are in one irregular shaped block with mature boundaries to include the river Black Brook. They are laid out in 10 manageable divisions and have the added benefit of an internal farm road. The lands are all in grass of excellent quality suited to most farming enterprises. Contained within the lands is a large farm yard with a number of agricultural buildings. Good road frontage onto a minor road.

Ideal location for a one off house,...