PATRICK HENNESSY V KEN TYRELL & EVERYDAY FINANCE DESIGNATED ACTIVITY COMPANY
This case was an emergency interlocutory application by the Plaintiff to prevent the Receiver Ken Tyrell and Everyday Finance from taking possession and selling his lands and from prohibiting an on-line action. The urgency was that there was an auction scheduled to take place imminently.
By way of background the purchase of the property was funded by a loan from AIB and secured by a Charge over the lands. The Plaintiff failed to meet his obligations in November 2016 and while he engaged with AIB, the loans were eventually transferred in 2019 to Everyday Finance. Further engagement ensued between the Plaintiff and Everyday Finance however no resolution was found.
In September 2021 Everyday appointed Ken Tyrell as Receiver. The Receiver’s power was limited to collection of the rents and profits. The Plaintiff and his brother had a company called Hennessy Brothers Farming Limited which had licences to farm most of the lands subject to a €50,000 per annum payment which included a licence fee which was not paid over to the Receiver. The Plaintiffs were unable to pay their debts or secure a restructuring of their debts.
The application for the injunction involved the restraining of the sale in the manner proposed by the Receiver and Everyday. It was not contested that Everyday had a power of sale or that the power had arisen or that it was exercisable. The Plaintiff said that he was shocked to be told that his lands were advertised for sale on a website. The land appeared to have been first advertised for sale in early February 2022 with an auction date for the 24th February 2022 and the advertising campaign appeared to have been limited to those who might stumble on the listing on the website.
The Judge ultimately concluded that he did not believe that damages would be an adequate remedy. Judge Allen referred to the issue of Everyday attempting to sell the lands with the Plaintiff in possession, but he did not go as far to say that Everyday were not entitled to offer the lands for sale without vacant possession.
Ultimately the Court concluded by granting the Orders sought essentially preventing the sale of the charged lands. The Court did make directions to ensure the expedient exchange of Pleadings and early Trial date to minimise the risk of injustice to either party.