Updated: 14/12/17 : 04:28:20Printable Version
Former Sligo mayor secures injunction to stop fund taking possession of properties
A former Mayor of Sligo and his wife have secured a High Court injunction preventing a fund appointed receiver taking possession of two residential investment properties they own writes Ann O'Loughlin
in The Irish Examiner.Ms Justice Carmel Stewart found James McGarry and his wife Louise were entitled to an order restraining receiver Tom O’Brien from dealing with dealing in any way with the two properties
The two properties at the centre of the dispute are located in Temple Street in Sligo. The injunction is to remain in place pending the full hearing of the dispute.
Mr O’Brien who opposed the action was appointed as receiver by Havbell DAC which was appointed as successor in title to the couple’s interests in loans they took out in respect of the properties with Permanent TSB in 2006.He was appointed after the couple received but did not satisfy a demand by Havbell for payment of €436,000 which it says remains due and owing in respect of the loans.
The couple of Strandhill Road, Sligo claim the mortgage documents Mr McGarry signed with PTSB in respect of the properties did not contain a stand alone power to appoint a receiver.
It was accepted the holder of the mortgage does have the power to possess or sell the properties, but not not a receiver who powers relate to the income from the properties.Mr McGarry, a former Sligo councillor who had represented both Fine Gael and the Labour parties, brought proceedings after the receiver took possession of and demanded the owners remove all their items from the properties.
They sought the injunction on grounds including that their rights were being infringed by trespass over their property.
Lawyers for the receiver opposed the application and argued he was validly appointed over the properties in September 2016 and claimed the McGarry’s attempted to frustrate the administration of the receivership.
In her ruling Ms Justice Stewart said the court was prepared to grant the injunction sought by the couple.The court was satisfied they had raised fair questions to be tried in relation to the validity of of the receiver’s appointment and the powers vested in him by the deed of appointment.
The Judge said in this case damages would not be an adequate remedy.
The court she said was "extremely concerned" about the McGarry’s property rights in a case where "serious questions " subsist over the the receivers appointment.
The balance of convenience also favoured the granting of the injunction, the Judge added. The case will be mentioned before the court next week.