COURT RULES IN FAVOUR OF JIMMY
JUDGE SAYS SHE FEELS THERE WAS A RUSH TO COMMENCE RECEIVERSHIP
A former mayor of Sligo and his wife have secured High Court injunctions preventing a fund-appointed receiver taking possession of two residential investment properties owned by them.
Ms Justice Carmel Stewart found Jim McGarry and his wife Louise, of Oakfield Road were entitled to orders restraining receiver Tom O’Brien from dealing with the two properties at Temple Street.
The injunctions apply pending the full hearing of the dispute between the couple and Mr O’Brien, appointed receiver by Havbell DAC after it acquired loans taken out by the couple in respect of the properties with Permanent TSB in 2006.
Matters are again before the High Court on Wednesday next the 20 th of December for conclusion.
Mr O’Brien was appointed over the couple’s alleged failure to satisfy a demand by Havbell for payment of €436,000 which it claims remains outstanding on the loans.
The couple, represented by Eanna Mulloy SC, instructed by solicitor Donna- cha Anhold, claim the mortgage documents signed with PTSB in respect of the properties did not contain a stand alone power to appoint a receiver.
Mr McGarry, a former Sligo councillor who has represented both Fine Gael and the Labour Party, and his wife, brought proceedings after the receiver took possession of and demanded the owners remove all their items from the properties.
Pending the full hearing, they sought injunctions on grounds including their rights were being infringed by trespass over their property.
Lawyers for the receiver opposed the application. It was argued the receiver was validly appointed over the properties in September 2016 and the McGarrys were seeking to frustrate administration of the receivership. In her ruling, Ms Justice Stewart said she would grant the injunction sought by the couple on grounds they had raised fair questions to be tried concerning the validity of the receiver’s appointment and the powers vested in him by the deed of appointment.
In this case, damages would not be an adequate remedy if the court refused the injunctions and the couple succeeded at the full trial, she also held. Last week’s hearing was told that in April 2017 the McGarrys discovered that agents of the defendant had forced their way into one of the properties. In one particular incident, Mr McGarry observed agents removing furniture from one of the properties and even damaging same.
Mr McGarry claims these men had stated that they were legally entitled to act in this manner and that the defendant was preparing the property for sale.
Karl Smith, a director of Havbell, swore an affidavit on May 31st 2017 stating that the plaintiffs continually failed to make repayments on the loan with the result it became immediately repayable and a receiver was eventually appointed.