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2026 IEHC 278

THE HIGH COURT [2026] IEHC 278 Record No. 2022/5086P Between TONY KENNY, JOAN MCENEFF and APRAIL ENTERPRISES LIMITED Plaintiffs and KEN FENNELL, MARK DEGNAN and EVERYDAY FINANCE DAC Defendants THE HIGH COURT Record No. 2022 191SP Between EVERYDAY FINANCE DAC trading as LINK FINANCIAL Plaintiff and TONY KENNY, JOAN MCENEFF and APRAIL ENTERPRISES LIMITED Defendants Judgment of Mr. Justice Dignam delivered on the 6th day of May 2026 1 INTRODUCTION 1. This judgment concerns two applications, one in each of the sets of proceedings. The first is an application in the plenary proceedings for interlocutory injunctions, including an Order compelling the defendants in those proceedings to give up possession of a particular property. The other is an application in special summons proceedings for an Order for Possession of that property, brought by Everyday Finance DAC. 2. For ease of reference, I will refer to the first and second-named plaintiffs in the plenary proceedings (the first and second-named defendants in the second set) collectively as “the Borrowers” or, where appropriate, by their individual names. I will refer to the third-named plaintiff in the plenary proceedings as “Aprail”. I will refer to the first and second-named defendants in the plenary proceedings as “the Receivers” and to the thirdnamed defendant (the plaintiff in the second set of proceedings) as “Everyday”. 3. The background to the two applications is as follows. I take this from the pleadings and the exchange of affidavits in both applications. Certain matters are in dispute or are not agreed. The following summary, therefore, should not be taken as findings of fact. 4. Mr. Kenny and Ms. McEneff own 3 Gladstone Street, Clonmel, County Tipperary (“the Property”). It is a retail building. Aprail is trading from the Property, operating a ‘fancy goods’ shop. 5. By Deed of Mortgage dated the 4th April 1997, the Borrowers mortgaged the Property to Allied Irish Banks plc (“AIB”) for all sums which were then or might thereafter become due and owing by them to AIB, its successors and assigns. The Property is unregistered land. The mortgage was registered in the Registry of Deeds on the 4 th December 2002. 6. Two amounts (€160,087 and €112,157) were advanced to the Borrowers by AIB on foot of two facilities provided for in a letter of sanction of the 20 th October 2015. A further amount (€114,750) was advanced by AIB to Ms. McEneff on foot of a separate letter of sanction of the same date. All three facilities were to be repaid by twelve consecutive monthly payments and final repayments on the 1st November 2016. 7. AIB’s interest in those facilities and in the mortgage of the 4 th April 1997 were acquired by Everyday by Global Deed of Transfer and an Irish Law Deed of Conveyance and Assignment which were executed on the 14th June 2019. Letters notifying the 2 Borrowers of the transfer, i.e., “Goodbye” and “Hello” letters, were sent to the Borrowers on the 20th June 2019 and the 28th June 2019 respectively. In the exchange of affidavits, the Borrowers formally put Everyday and the Receivers on proof of this transfer and conveyance. 8. The Borrowers failed to repay the facilities on the 1 st November 2016. On the 22nd July 2020, letters of demand were sent by Link Asset Services on behalf of Everyday to the Borrowers in respect of the first and second facilities. A separate letter of demand was sent to Ms. McEneff in respect of her facility. The letters stated that if the outstanding amounts were not paid within seven days Everyday would exercise its rights under its security, including its right to appoint a receiver. 9. The Borrowers did not meet those demands and Everyday appointed Mr. Ken Fennell and Mr. Mark Degnan as receivers by Deed of Appointment of the 11 th June 2021. According to Mr. Degnan’s replying affidavit in the injunction proceedings, they wrote to the Borrowers and to “The Occupier” of the Property to advise them of their appointment. The only letter that is exhibited is a letter addressed to “The Occupier” but the Borrowers do not dispute that the Receivers wrote to them informing them of their appointment. Furthermore, the Borrowers refer to advices from Everyday’s solicitors which were attached to the letter notifying them of the appointment of the Receivers. Thus, it appears that the Borrowers were notified of the appointment of the Receivers. In the letter to “The Occupier” (11th June 2021) the Receivers sought “a copy of the finalised tenancy agreement” under which they occupied the Property. 10. There was a period of engagement between the parties and the receivership was put on hold between July 2021 and September 2021. 11. On the 23rd September 2021, the Receivers wrote again to “The Occupier” requesting a copy of the tenancy agreement and stating that in the absence of same they would proceed to take possession of the Property and change locks without further notice. 12. On the 28th September 2021, solicitors acting for the Borrowers (not “The Occupier”) replied to that letter. They disputed that the Receivers had any right to take possession of the Property on the basis that the mortgage did not confer such a right on them. They made clear that the Borrowers would not consent to the Receivers or the lender (who I will refer to as “Everyday”) taking possession and that any attempt by them to do so would be resisted. They also pointed out that a mortgagee can only take possession of a property without a Court Order if they can do so peaceably. They also raised two other points: that the Borrowers had negotiated a sale of another property which would have reduced the Borrowers’ indebtedness but Everyday ultimately would not 3 consent to that sale; and that the Borrowers were the beneficiary of a judgment of €350,000 which they were actively seeking to enforce. I return to these, and related, points. The letter did not engage with the issue of the alleged tenancy of Aprail or the Receivers’ requests for a copy of any tenancy agreement. 13. Solicitors for Everyday and the Receivers responded to the points in the Borrowers’ solicitor’s letter of the 28th September 2021 by letter of the 11 th February 2022 (though the Borrowers’ solicitor did not accept that this was a substantive response). 14. In the meantime, by an Agency Agreement and an Addendum of the 16 th December 2021, Everyday appointed the Receivers as its agents and authorised them to exercise Everyday’s powers under the mortgage for the purpose of (

  1. i)taking possession of the Property, (
  2. ii)the marketing and letting or sale of the Property, and/or (iii) in the performance of any matters ancillary to the exercise of the power to take possession and the marketing and power of letting or sale of the Property. 15. As I refer to at paragraph 13, Everyday’s solicitors replied to the Borrowers’ solicitors’ letter of the 28th September 2021 on the 11th February 2022. It is not necessary to set out the detail of this letter. One issue which was raised was the Receivers’ attempts to procure information in respect of the tenancy and it was pointed out that this had been unsuccessful, i.e., the information had not been provided. 16. In a further letter of the 1st April 2022, the solicitors for Everyday and the Receivers said that in the absence of the provision of any information in relation to the occupation of the Property, they were concluding that “The Occupier” was not occupying the Property on a valid basis, and went on to say that “agents of the mortgagee will attend at the property for purposes of gaining access and your clients are requested to cooperate in their dealings with our client’s agent.” These points were repeated in a further letter of the 8th July 2022 from Everyday and the Receivers’ solicitor. 17. The Borrowers’ solicitor replied on the 29 th July 2022 stating that their instructions were that Aprail was in occupation and had been since 1997 with the “full knowledge and approval of AIB”. They also raised the other issues which they had initially raised on the 28th September 2021, i.e. the sale of another property and the benefit of a judgment against a third party. 18. The solicitor for Everyday and the Receivers replied on the 1 st September 2022. They stated that their client had confirmed that the account was currently in default and that no repayments were being received. They stated that the amount that was due and 4 owing to Everyday was €414,940.55. They also formally declined any settlement proposals. In relation to the occupation of the Property by Aprail, the letter went on to say that the Borrowers had not produced evidence of prior written consent by AIB, and they were therefore not bound by any purported lease or tenancy. They demanded vacant possession, failing which they would be securing the Property. 19. The Borrowers’ solicitors joined issue with the contents of this letter in their own letter of the 8th September 2022 and reasserted that possession could only be taken on foot of a Court Order. 20. The Receivers instructed a security firm to take possession of the Property on their behalf. The security firm did so on the 29 th September 2022 by changing the locks on the Property before trading took place. 21. On the 4th October 2022, the Borrowers and Aprail issued the plenary proceedings and obtained short service for their injunction application. On the 7 th October 2022, an agreement was reached whereby Aprail was permitted to return to the Property during business hours pending the hearing of the injunction application. The special summons proceedings were subsequently issued, and both matters have been dealt with together. THE POSITION OF THE PARTIES 22. The papers in both applications were opened to me and the parties addressed both applications. The submissions on behalf of the Borrowers and Aprail, in particular, were intended to apply to both applications. While the plenary proceedings and the application for interlocutory injunctions in those proceedings were issued before the special summons proceedings, it seems to me to be appropriate to determine the special summons proceedings first. In the event that Everyday is successful in establishing its entitlement to an Order for Possession, this would render the application for interlocutory injunctions moot. 23. The Borrowers (and Aprail) raised a number of points in the exchange of affidavits, including putting Everyday and the Receivers on proof of certain matters; for example, at paragraph 4 of Mr. Kenny’s replying affidavit in the special summons proceedings, he expressly puts Everyday on proof of the transfer of interest/acquisition of the debt formerly held by AIB, and of all matters relating to the validity/enforcement of the security provisions asserted by Everyday. However, no specific points were raised in relation to these issues and they were not really advanced at the hearing. I will therefore only address 5 them briefly. I set out the defences that were relied upon shortly. These also grounded the application for the interlocutory injunction. 24. Everyday’s case in the special summons proceedings is as follows. The Borrowers executed the mortgage on the 4 th April 1997. They drew down the facilities referred to above and received the monies. The facilities were secured by the mortgage (either expressly or because it was an “all sums” mortgage. Those facilities were to have been repaid on the 1st November 2016 and were not repaid. Everyday acquired AIB’s interest in the mortgage and the facilities by Global Deed of Transfer and an Irish Law Deed of Conveyance and Assignment of the 14th June 2019. By letters of the 22nd July 2019, Link Asset Services, on behalf of Everyday, demanded repayment of the amounts due on foot of the facilities within seven days. The Borrowers have not repaid the loans in accordance with the terms thereof or in accordance with the demands. It was submitted that Everyday is entitled to possession irrespective of whether or not the Borrowers are in default, but that, as a matter of fact, the Borrowers are in default in those circumstances. It was also submitted that Everyday is entitled to possession of the Property notwithstanding that it is occupied by Aprail. 25. It was accepted by the parties that special summons proceedings are summary in nature and that relief may not be granted summarily if the defendant establishes an arguable defence. The matter should be remitted to plenary hearing if issues of fact arise, the resolution of which can best be resolved by plenary hearing, or where the complexity of issues raised is such that the action cannot be disposed of in a summary manner (see National Irish Bank Ltd v Graham [1995] 2 IR 244). In ACC Loan Management Ltd v Gillespie [2014] IEHC 654, Donnelly J said at paragraphs 33 and 34: “33. Under Order 38, rule 9 of the Rules of the Superior Courts, 1986, this court may, on the hearing of the special summons: (
  3. i)give the plaintiff judgment for such relief to which it is entitled (
  4. ii)dismiss the action, or (iii) adjourn the proceedings for plenary hearing. This is subject to the overriding principle that the court generally may make such an order for determination of questions in issue in the action or matter as may seem just. Order 1, rule 4 of the Rules of the Superior Courts 1986 envisages special summons proceedings as being summary in nature. It was accepted by both sides that I may only give judgment for the plaintiff if it is a proper case for summary judgment. 34. The Supreme Court in Danske Bank v. Durkan New Homes Limited [2010] I.E.S.C 22, albeit in the context of a Motion under Order 37, rule 7 of the Rules of the Superior Courts, 1986, stated:- 6 14. Several cases were opened before the Court which have addressed this jurisdiction. These included Bank of Ireland v. Educational Building Society [1999] 1 I.R. 220 where Murphy J. emphasised that it was appropriate to remit a matter for plenary hearing to determine an issue which is primarily one of law, where a defendant identified issues of fact which required to be explored and clarified before the issues of law could be dealt with properly. He stated at p.231:"Even if the position was otherwise, once the learned High Court Judge was satisfied that the defendant had "a real or bona fide defence", whether based on fact or on law, he was bound to afford them an opportunity of having the issued tried in the appropriate manner." 15. In Aer Rianta c.p.t. v. Ryanair Limited [2001] 4 I.R. 607, Hardiman J. reviewed Irish cases and concluded at p.623:"In my view, the fundamental questions to be posed on an application such as this remain: is it "very clear" that the defendant has no case? Is there either no issue to be tried or only issues which are simple and easily determined? Do the defendant's affidavits fail to disclose even an arguable defence?" 16. In McGrath v. O'Driscoll [2007] 1 ILRM 203, Clarke J. described the law as follows, at p. 210:"So far, as questions of law or construction are concerned, the court can, on a motion for summary judgment, resolve such questions (including, where appropriate, questions of the construction of documents), but should only do so where the issues which arise are relatively straightforward and where there is no real risk of an injustice being done by determining those questions within the somewhat limited framework of a motion for summary judgment." 17. Thus, the issue in this appeal is whether the appellants have satisfied the Court that they have an arguable defence.” 26. The Borrowers do not dispute that they entered the mortgage with AIB, that they received the loans from AIB, that those loans were secured by that mortgage (though they do not accept the validity of the security provisions), or that they are in default. The Borrowers formally put Everyday on proof of the transfer of interest/acquisition of the 7 debt, and of the validity/enforcement of the security provisions relied upon by them. However, these were not really advanced at the hearing. In reality, the points relied upon by the Borrowers and/or Aprail as defences to the claim for an Order for Possession (and as grounding their application for injunctions) were as follows. 27. It was submitted that the Receivers had no right to take possession, and have no right to retain possession, as no such powers are conferred by the Mortgage. It was also submitted that the manner in which the Receivers took possession of the Property was not peaceable. It was submitted that both of these factors give rise to a claim for damages, including exemplary damages, which will operate as a counterclaim if leave to defend the special summons proceedings is granted. A claim for damages is already the subject of the plenary proceedings. 28. The Borrowers also rely on attempts which they have made to pursue a judgment debt owed to them by a third party. They say that once this is recovered a sizeable amount will be available to discharge a large portion of their indebtedness to Everyday. 29. Reliance is also placed on a proposed sale of another property owned by the Borrowers and the fact that Everyday would not give its consent to that sale. 30. The Borrowers also raise the point that the total amount claimed and the evidence in the statements of account exhibited to the verifying affidavit of Mr. Andrew McCudden includes an amount which is owed on foot of a personal guarantee given by the Borrowers in respect of Aprail’s liabilities. This guarantee is not covered by the mortgage. 31. Finally, the Borrowers and Aprail rely on Aprail’s alleged tenancy in the Property. At paragraph 4(
  5. c)of the replying affidavit of Mr. Tony Kenny, he states “In relation to the occupation of the property by the Third-Named Defendant, I say that the Plaintiff is bound by the acquiescence of its predecessor in title to the tenancy of the Third-Named Defendant.” The Occupants claim that Aprail is entitled to the grant of a long lease. APPLICATION FOR ORDER FOR POSSESSION 32. Donnelly in The Law of Credit and Security (3rd Ed., paragraph 20.22) summarised the general principles in relation to a mortgagee’s entitlement to possession of unregistered land where the mortgage pre-dated the 1st December 2009 as follows: “For legal mortgages of personal property and legal mortgages of unregistered land created prior to 1 December 2009, the mechanism for creation of the security 8 interest is/was the conveyance or assignment of the legal estate in the property. As a result, a mortgagee in these circumstances has, by virtue of its estate in the property, an inherent right to possession. In practice, however, this position is generally varied by the mortgage contract by the inclusion of a provision which allows the mortgagor a right of possession in respect of the mortgaged property and defers the mortgagee’s inherent right to possession unless there had been a default under the terms of the mortgage contract. Even in the absence of such an express term, the courts have implied a right of possession in favour of such a mortgagor in situations where the mortgage was payable by instalments and where the contract made express provision for the mortgagee to enter into possession where the mortgagor is in default. In these situations, however, the effect of default (as defined in accordance with the terms of the mortgage contract) is to reestablish the mortgagee’s inherent right of possession.” 33. In Mortgages: Law and Practice (2nd Ed., paragraph 5-04), Maddox states, inter alia: “...For mortgages operating by way of conveyance (of unregistered land) entered into prior to 1 December 2009, there is a general common law rule that a mortgagee, to whom a legal estate has been conveyed by deed of mortgage, is entitled to possession of the property, being an incident of the estate he has had conveyed to him.” 34. In National Westminster Bank v Skelton [1993] 1 All ER 242, the English Court of Appeal cited with approval comments by Harman J in Four-Maids Ltd v Dudley Marshall (Property) Ltd: “...the right of the mortgagee to possession in the absence of some specific contract has nothing to do with default on the part of mortgagor. The mortgagee may go into possession before the ink is dry on the mortgage unless by a term expressed or necessarily implied in the contract he has contracted himself out of that right. He has the right because he has a legal term of years in the property. If there is an attornment clause, he must give notice. If there is a provision expressed or to be implied that, so long as certain payments are made he will not go into possession, then he has contracted himself out of his rights. Apart from that, possession is a matter of course.” 35. The Property is unregistered land. The mortgage of the 4 th April 1997 conveyed the legal estate to AIB. It provides at clause 5.01: 9 “The Mortgagor as beneficial owner hereby demises unto the Bank ALL THAT AND THOSE so much of the mortgaged property (save any parts of the ownership whereof is registered in the Land Registry) as is of freehold tenure To Hold the same unto the Bank for the term of 10,000 years from the date of these presents subject to the provisor for redemption hereinafter contained.” 36. At clause 8.02, it provides: “At any time after the execution of these presents the Bank may without any consent from or notice to the Mortgagor or any other person enter into possession of the Mortgaged Property or any part thereof or into receipts of the rents and profits of the mortgaged property or any part thereof.” 37. Thus, default is not expressly required in order for Everyday to obtain possession. 38. On the facts of the case, it is unlikely that the Borrowers have an implied right of possession in the absence of default in light of clause 8.02, but I do not need to determine this because I am satisfied that such default has occurred. Indeed, this is not disputed by the Borrowers. Mr. Kenny states at paragraph 3 of his grounding affidavit for the injunction application: “The Second Named Plaintiff and I are in considerable default in relation to our obligations to repay the loan and on 1st September 2022 we were advised by the Defendants’ solicitors that the amount of €414,940 was due in respect of the loan facilities although no statement of account to vouch this figure has been produced. While instalments have not been paid in accordance with the Plaintiffs’ contractual obligations, the sum of €469.56 has been and continues to be paid to the Third Named Defendant. This sum represents the full monthly rent paid by the Third Named Plaintiff Company to the Second-Named Plaintiff and me.” 39. One of the points raised on behalf of the Borrowers was that the amount that was claimed to have been due and owing was incorrect because it included an amount that was not secured by the mortgage. At the hearing, Everyday accepted this this was the case (or at least that there is a dispute in relation to
  6. it)and said that the amount that is stated at paragraph 26 of Mr. McCudden’s grounding affidavit and in the letter of 1 st September 2022 is incorrect (for the purpose of this application). I was told at the hearing that the amount being relied upon as outstanding which is secured by the mortgage is in fact €357,000. I do not believe that this deprives Everyday of an entitlement to the relief claimed. It is accepted by the Borrowers that they are in “considerable default in relation 10 to [their] obligations to repay the loans” and that “instalments have not been paid in accordance with the Plaintiffs’ contractual obligations.” In Launceston v Burke [2017] IESC 62, McKechnie J said: “The third reason is that, once again, the entire question of penalty relief is simply not relevant to the instant appeal. Obviously if a money judgment had been given against Mr. and Mrs. Burke, I would readily see how a sustainable argument could be advanced in respect of the €20,000 conditional fee. But that is not what we are dealing with. It is an appeal against the making of a Possession Order. It is, therefore, very difficult to see how the allegedly penal element of the contract is at all engaged on the facts: what the respondent seeks is possession of the properties, not a sum, penal or otherwise, for a breach of the underlying contract. In addition, it is undoubtedly the fact that even if all fees were waived, there was still a sufficient default which triggered the rights set forth in the security instruments. Therefore, the issue does not arise.” 40. In Bank of Ireland v Blanc [2020] IEHC 18, O’Regan J stated: “The current investigation before the court is possession only. I am not asked to make a judgment of any description as to the sums of money that are due and owing currently by the defendants to the bank. What the Court must do is look to determine if, by the time the plaintiff commenced the process leading to proceedings in January, 2016 there was default in the loan repayment sufficient to enable the plaintiff to commence their possession proceedings in September, 2016 having regard to the contract entered into between the parties. … The issue of how much money is due and owing and the guide to the granting or withholding of possession was dealt with by Ms. Justice Dunne in the High Court in 2009 in Anglo Irish Bank PLC v. Fanning [2009] IEHC 141, when it was indicated that a default was the issue, not the amount. That is clearly the case in circumstances where possession only is sought and not judgment of a particular sum of money, and possession is the only matter before this Court.” 41. Even if default was required to trigger the entitlement to possession, I am satisfied that there has been such default notwithstanding that the relevant amount was misstated. Thus, I am satisfied that the mortgagee’s entitlement to possession is engaged. 42. In the exchange of affidavits, the Borrowers put Everyday on proof of the transfer of AIB’s interest in the loans and the mortgage to them. In essence, this puts Everyday on proof that they are the party entitled to enforce the security. This was not advanced in 11 any real way by the Borrowers at the hearing and no specific points were raised. I am, in any event, satisfied that Everyday has established that AIB’s interest in the mortgage and the facilities have transferred to Everyday. The Global Deed of Transfer and the Irish Law Deed of Conveyance and Assignment are exhibited to the verifying affidavit of Mr. McCudden. They clearly identify the relevant loans and mortgage. In the absence of any specific point upon which the Borrowers assert that these are not valid or effective, I am satisfied that they transfer AIB’s interest in the loan facilities and the mortgage to Everyday. 43. Thus, I am satisfied that Everyday is the party entitled to enforce the security by seeking and obtaining possession and that the entitlement to do so is engaged. However, as enumerated above, a number of points were raised by the Borrowers and Aprail as defences (and as grounds for the interlocutory injunctions). Receivers unlawfully took possession 44. The Borrowers and Aprail submit that the Receivers were not entitled to take possession of the Property. As set out above, the Receivers took possession of the Property on the 29th September 2022 by instructing a security firm to enter the premises. That firm did so by changing the locks on that date prior to commencement of trading. The Borrowers and Aprail submit that this was unlawful in two respects. 45. The first is that the Receivers do not have any entitlement to possession under the mortgage. Everyday and the Receivers answer this by saying that the Receivers had implied authority to do so to receive the rents, and that, in any event, the Receivers were, in going into possession, acting as agents of the mortgagee, having been appointed as such by the Agency Agreement and Addendum (see McGirr & anor v Everyday Finance DAC & anor [2022] IEHC 612). They principally rely on the latter. There are undoubtedly factual issues in relation to the capacity in which the Receivers were acting. For example, during the hearing, the Borrowers sought to file an affidavit to exhibit copies of the Agency Agreement and Addendum which were provided to them prior to Christmas 2022. These copies did not contain a date of execution, and the Addendum did not identify the date of the Agency Agreement. This is in contrast to the Agency Agreement and Addendum exhibited by Everyday in the proceedings. By way of further example, prior to the security firm taking possession of the Property, they delivered a letter to the local Garda Superintendent. That letter was headed “Matter of: The Receivership of Certain Assets of Anthony Kenny & Joan McEneff (In Receivership) Property under this Receivership Instruction: 3 Gladstone St, Oldbridge. Clonmel, Co. Tipperary”. It went on to state, inter alia: 12 “I refer to the above matter and wish to advise that I have retained the services of Ktech Security as my security management agents to enter and take possession on my behalf. By Deed of Appointment dated 11th June 2021 I am the Receiver of this property on behalf of Everyday Finance DAC. I have enclosed a copy of the Deed of Appointment for your reference. We enclose a document pack including the Deed of Appointment and formal advance notices which sets out details of the Receiver’s instructions to Ktech Security and the legal basis and general background to this instruction. Once the Receiver has taken possession of the property, whether on foot of the enclosed or via a Court Order for Possession, the property will formally be in the custody and control of the Receiver on behalf of the lawful Chargeholder or Mortgagee...” 46. As will be noted, the letter is written in the context of a receivership and it refers to the authors as being the Receiver and to the security company receiving the instructions from the Receiver. The only indication that they were not acting as Receiver is where they state that “the property will formally be in the custody and control of the Receiver on behalf of the lawful Chargeholder or Mortgagee…”. 47. Thus, there is some question over the capacity in which the Receivers were acting when they took possession of the Property. The Borrowers and Aprail submit that if they were acting as Receivers this is particularly egregious because in advice from their solicitors prior to possession being taken (which, it seems, was mistakenly sent to the Borrowers along with the Deed of Appointment) they were advised that they did not have power to take possession. 48. The second basis upon which the Borrowers and Aprail say that the Receivers acted unlawfully is that, even if they had an entitlement to take possession, they could only do so peaceably, and the manner in which they did so was not peaceable. They relied on Charleton v Hassett [2021] IEHC 746. I was referred to Hafeez v CPM Consulting Ltd [2020] IEHC 536 by Everyday. 49. In my view, even if the Occupants are correct on either or both of these points, they do not amount to a defence to Everyday’s claim in the special summons proceedings. 13 It is therefore not necessary for me to determine these points. They could, of course, give rise to an entitlement to damages on the part of the Occupants. It seems that the effect of possession being taken was to lead to the closure of the business for a period of time. If the Receivers (or Everyday) acted unlawfully and caused loss to the Borrowers and/or Aprail, they may be entitled to damages. Indeed, it might give rise to an entitlement to an injunction. However, there is no basis for concluding that it means that Everyday is not entitled to an Order for Possession, if otherwise entitled to one. The claim for an Order for Possession in the special summons proceedings is made by Everyday as mortgagee, not by the Receivers. Whether or not the Receivers were entitled to take possession, or were entitled to do so in the manner in which it was done, is not determinative of whether Everyday is entitled to an Order for Possession and, therefore, the allegation that possession was taken unlawfully does not amount to an arguable defence. It was submitted that an Order for possession in those circumstances would amount to the Court condoning crime. I do not accept that. The question of whether Everyday is entitled to an Order for Possession is separate from whether the Receivers or Everyday acted unlawfully in taking possession. The question of whether or not those actions were wrongful will be determined in the plenary proceedings, and, if they are found to have been unlawful, an appropriate remedy will be granted by the Court. 50. The Borrowers and Aprail have stated their intention to pursue a counterclaim for this damage in these proceedings in the event that leave to defend is granted. I am not satisfied that this gives rise to an arguable defence to the claim for an Order for Possession. There is no dispute about default (insofar as such default is necessary) and therefore, whether or not Everyday or the Receivers will subsequently be found liable to the Borrowers and/or Aprail for such damages is not relevant to the question of Everyday’s entitlement to an Order for Possession. An entitlement to an injunction on foot of such alleged wrongful actions could only arise if there was any doubt about Everyday’s entitlement to possession. Judgment against a third-party 51. The Borrowers also rely on the fact that they have secured a judgment against a third party and that when the amount of this judgment is recovered it will be put against the amount outstanding to Everyday. Mr. Kenny deals with this in his replying affidavit. He states: “7. I say that while AIB retained ownership of the debt, I made them aware that I was a judgment creditor of one Michael Hogan. I say that the order for judgment is exhibited at “TK4” of my grounding affidavit in the injunction application. Mr. 14 Hogan was a receiver appointed of neighbouring property which was destroyed by fire, which said fire damaged property of your Deponent. Issues arose as to an indemnity between Mr. Hogan and the relevant Bank. Ultimately, the Defendants in these proceedings obtained judgment against Mr. Hogan. Mr Hogan’s company is presently in the process of liquidation. It has been communicated to my solicitor that certain monies will be available in substantial satisfaction, but not total satisfaction, of the judgment debt. I say that I am willing to pay same (after the payment of attendant legal costs) to the Plaintiff as condition of leave to defend these proceedings 8. I further say that since the purported transfer of the loan to the Plaintiff herein, I have made the Plaintiff aware of the judgment debt and have sought to keep them updated in relation to same. In particular I say that on Friday, 31st July 2020 at 11.00a.m. I spoke with an Agent, “Jonathan” of Link who confirmed to me that they were aware of the Court order for judgment. From that conversation it was clear to me that Link were willing to give “space” to your Deponent to seek recovery on foot of the judgment for the ultimate benefit of the Plaintiff. I say that at 5.pm on the same day, “Jonathan” telephoned your Deponent to advise that the Plaintiff had had a change of mind and was appointing receivers. The timing of this call was at close of business on Friday of a Bank Holiday weekend which marks the end of the legal term and the traditional start of vacation for the legal profession. 9. I have instructed my solicitor to seek an update from Mr. Hogan’s liquidator as to the amount and expected timeline until payment of the monies available to partially reduce the judgment debt. It is your Deponent’s present understanding that a sum in the order of approximately €200,000 will be available in that regard.” 52. I was also told at the hearing that this matter has been resolved, and that €220,000 is to be paid to the Borrowers, of which something in the region of €175,000 will be available to put towards the indebtedness to Everyday as a condition of these proceedings being remitted to plenary hearing. 53. In my view, this does not give rise to an arguable defence to the claim for an Order for Possession. Fundamentally, even if this amount is available, the entitlement to an Order for Possession which is relied upon by Everyday is the Borrowers’ default. That default has already occurred. In any event, even if the sum of €175,000 is available, it is still short of the amount which is claimed to be due and owing. The availability of this amount may be relevant to a stay. 15 Occupation of the Property by Aprail 54. The Borrowers and Aprail also rely on the occupation of the Property. This, it seems to me, does not amount to a defence to the claim for an Order for Possession against the Borrowers, but it may be relevant to the claim against Aprail. 55. Clause 7.01(
  7. e)contains a covenant that the mortgagors will not, inter alia, let the Property without the prior written consent of AIB. It provides that the mortgagor’s covenant: “Not to convey transfer assign or let or part with the possession of the mortgaged property or any part thereof or any interest therein without the prior consent in writing of the Bank and further and without prejudice to the generality of the foregoing not to exercise the statutory powers of leasing or agreeing to lease or accepting or agreeing to accept a surrender of a lease contained in Section 18 of the Act of 1881 without the prior consent in writing of the Bank.” 56. It is necessary to look at the basis on which the Borrowers and Aprail say that the latter is in occupation and on which they say that the occupation is binding on Everyday. The Borrowers and Aprail are, of course, only required to establish an arguable case at this stage. The Court can not resolve any conflicts of fact. 57. As summarised above, the basis of Aprail’s tenancy was the subject of extensive correspondence between the parties, with Everyday repeatedly requesting information or documentation in respect of the alleged tenancy. The Borrowers’ solicitor ultimately replied on the 29th July 2022 (over a year after requests were first made). They stated: “You have asked who is in occupation of the above property. Our clients have confirmed that their company, Aprail Enterprises Limited, is in occupation and that this has been the position since shortly after they purchased it in 1997. They instruct that the occupation took place with the full knowledge and approval of their then lender, AIB, whose branch is only a short distance from the property. Indeed, AIB advanced an overdraft facility to that company to support its business operating from the property. Our clients further instruct that all rent received is paid up to its mortgagee via monthly mortgage repayments which we understand are fully up to date in relation to the loan facility which is secured against this property. Accordingly, your client is in receipt of all rent.” 58. No formal tenancy agreement of any sort was provided at that stage despite this letter being in response to repeated requests for same. Later, during the course of the 16 exchange of affidavits, Mr. Kenny said that “Initially there was no formal lease in place, however, the Company has been in occupation of the Premises since the creation of the said AIB mortgage.” While the use of the phrase “[I]nitially there was no formal lease in place” would appear to suggest that one was subsequently put in place, the Borrowers and Aprail have never claimed that a formal lease was entered into, and no such lease has been produced. There is therefore no dispute but that Aprail’s occupation is on the basis of an informal agreement between the Borrowers and Aprail. Of greater importance is whether AIB consented to this. 59. The plaintiff does suggest at paragraph 6 of his second replying affidavit in these proceedings that consent was given by AIB. He says: “I beg to refer to paragraph 27 of Mr McCudden’s affidavit. He said that AIB did not give its consent to the tenancy in the Property of the Third Named Defendant company and that the tenancy is not binding on the Plaintiff. That is not the case and I believe if given an opportunity to call bank witnesses I will be able to establish that the bank knew and consented to the letting of the Property. In that regard it is significant that the statements of account on the company overdraft at pages 131-137 of the Plaintiff’s booklet are addressed by the Plaintiff’s agent to the Third Named Defendant company at the Property and this was previously the case with the AIB bank statements as well. The bank knew and accepted the tenancy and the rent.” 60. However, this provides no detail whatsoever. Mr. Kenny does not say that consent was given in writing. He does not say when or by whom it was given. He does not give any information in relation to any of the circumstances in which he says it was given. The furthest he goes is to say that he believes that “if given an opportunity to call bank witnesses I will be able to establish that the bank knew and consented to the letting of the property”. That is a mere assertion. 61. In reality, the Borrowers’ case is that AIB (and Everyday) knew of and acquiesced in Aprail’s occupancy. This is clear from the following. The quote set out at paragraph 59 above is from Mr. Kenny’s second replying affidavit in these proceedings. It therefore came after two earlier affidavits, i.e., his grounding affidavit in the injunction application and his first replying affidavit in these proceedings. He did not mention prior consent in either of those affidavits. 17 62. The furthest he goes in his grounding affidavit in the injunction application is to say that AIB and Everyday knew of Aprail’s occupancy. He says at paragraphs 3 and 4 of that affidavit: “The Second-Named Plaintiff is my long term partner and I am a director of the Third-Named Plaintiff, Aprail Enterprises Limited (“the Company”). The Company has traded from the Premises since 1993. Since the Second-Named Plaintiff and I purchased the Premises in 1997 with the assistance of an AIB mortgage, the Company has paid and continues to pay monthly rent to the Second-Named Plaintiff and me. Initially there was no formal lease in place however, the Company has been in occupation of the Premises since the creation of the said AIB mortgage. The occupation has at all times been known to AIB and its staff, the predecessors in title of the debt now held by the Third Named-Defendant. It is also my belief that the fact of occupation by the Company must have been known to the Third NamedDefendant when it acquired the debt and security in suit. In this regard and by way of sample only, I beg to refer to copy Statements from Link Asset Services (agent of the Third Named-Defendant) to the Company at the Premises dated 31st December 2019 and 22 April 2021 which pinned together and marked with letters and number “TK1” I have signed my name prior to the swearing hereof. It is noteworthy that the Premises is not the registered office of the Company. The Company has enjoyed the benefit of an overdraft facility with AIB and all correspondence with the Company arising from its banking relationship with AIB is addressed to the Premises. In this regard and by way of sample only, I beg to refer to copy correspondences from AIB to the Company dated 3rd February 2004 and 7th December 2004 which pinned together and marked with the letters and number “TK2” I have signed my name prior to the swearing hereof. This is only part of the Company’s dealings with AIB.” [emphasis added] 63. He is even clearer at paragraph 4 of his first replying affidavit in these proceedings that: “I am advised by Counsel that it is not appropriate to raise issues of law by way of affidavit. For the purpose of putting certain matters in issue and in order to notify the Plaintiff of same, I say the following … (
  8. c)In relation to the occupation of the property by the Third Named Defendant, I say that the Plaintiff is bound by the acquiescence of its predecessor in title to the tenancy of the Third-Named Defendant…” 18 64. The Borrowers’ and Aprail’s case is that AIB and Everyday knew of and acquiesced in Aprail’s occupation of the Property. I am satisfied that both AIB and Everyday were aware that Aprail was in occupation of the Property. Indeed, that is not disputed by Everyday. That in itself is not sufficient. 65. In N17 Electrics v Fennell [2012] IEHC 228, Dunne J said at paragraph 30: “A number of useful observations can be made from the authorities referred to above. I think, first of all, that it is clear that a mortgagor and mortgagee can expressly agree to exclude the power conferred by s. 18 of the 1881 Act. If the power is excluded, it may be done in a way that permits the mortgagor to grant a lease subject to the prior consent of the mortgagee. If such prior written consent is not obtained by the mortgagor and the mortgagor proceeds to enter into a lease with a tenant, the lease will be binding on the mortgagor as lessor, but as against the mortgagee, the lease will not be binding. It is also clear that in certain circumstances, the lease may be binding on the mortgagee in circumstances such as those described in the authorities referred, where, for example, the mortgagee “serves a notice on the tenant to pay the rent to him”. It is also clear from the authorities referred to above, that the mere fact that the mortgagee is aware of the existence of a tenancy and that a tenant is paying rent to the mortgagor which is being used to pay the obligations of the mortgagor to the mortgagee, is not, of itself, sufficient to create a relationship between the mortgagor’s tenant and the mortgagee.” 66. At paragraph 47, Dunne J said: “It is essential from a lender’s point of view that the secured property is available as security in the event of default by the borrower. It is therefore important to ensure from the lender’s point of view that any impediment to the realisation of its security by reason of a lease binding on the mortgagee should be one in respect of which the mortgagee had furnished its consent. That is the importance and the function of the negative pledge cause contained in the various mortgages/charges. From the bank’s point of view in this case, there was no commercial reality apparent in the business lease agreement. It is inconceivable that the bank would ever have consented to a lease in the terms of the business lease agreement had it been asked to do so.” 67. In Murphy v Hooton [2014] IEHC 266, Peart J said in the context of a claim by a tenant that an oral tenancy with the borrowers had given rise to a business equity: 19 “It is hard to avoid the same conclusion in the present case, particularly in circumstances where there was not even a written agreement between the defendant and her husband and son, which might at least have stood some chance of containing terms which the bank might have given its approval to had it seen them. Here there is nothing except some sort of verbal arrangement whereby she agreed with her husband that each month she would pay the sum of €3250 against their obligations to the bank. … If the Court was to consider that the actions of the defendant in compliance with her agreement with her husband should serve to deprive the bank of the protection to its security intended to be given by the existence of Clause 11(L), albeit that she has informed the bank in February 2008 that she would be continuing the business in her own name from the property and made payments in the said sum on a monthly basis, it would be to countenance a situation where on the barest of evidence of these arrangements, a bank would be denied the very protection that clauses of this kind are designed to give lenders. In my view the evidence of acquiescence or even consent must be clear. It must be clear also exactly what the terms to which they are deemed to have accepted are. The effect of Clause 11(L) and clauses like it cannot be negated by stealth or accident. Where it is sought to imply by its conduct that the lender has acquiesced or given up its entitlement to the protection of such a clause, the facts must be clear so that an intention to do so is clearly made out, in circumstances where the need for a prior written consent is so clearly spelled out. The onus is on the defendant to establish these matters clearly. In my view the evidence in the present case falls so far short of the mark that I cannot conceive, on the evidence available and the state of the law, of any prospect of a successful defence to the plaintiff's claim for possession. In these circumstances I must come to the conclusion that the plaintiff has made out a very strong arguable case for any higher threshold of arguability that is required of him in seeking in effect a mandatory order requiring the defendant to vacate the premises. ” 68. Thus, in my view, even allowing for the fact that AIB and Everyday were aware that Aprail was in occupation of the Property, I am not satisfied that there is an arguable case that the occupation or tenancy binds Everyday. 69. Senior Counsel for the Borrowers and Aprail emphasised that Dunne J said in N17 Electrics that “the mere fact that the mortgagee is aware of the existence of a tenancy and that a tenant is paying rent to the mortgagor which is being used to pay the obligations of the mortgagor to the mortgagee, is not, of itself, sufficient to create a relationship between the mortgagor's tenant and the mortgagee [emphasis added].” He submitted that 20 this left open the possibility that a tenancy may be binding even where prior consent was not given. However, even if that is correct, the Borrowers and Aprail did not refer me to any additional factor in this case. The only factors relied upon are AIB and Everyday’s awareness of the occupation of the Property by Aprail and possibly that rent from Aprail was being used to make partial mortgage payments. On the basis of these authorities, the fact that AIB and Everyday knew of Aprail’s occupation of the Property and the fact they corresponded with Aprail at the address of the Property, or even knew that the Borrowers were using rent from Aprail to make payments towards the mortgage is not sufficient to amount to acquiescence or to Everyday giving “up its entitlement to the protection of such a [negative pledge] clause…” In those circumstances, I can not conclude that Aprail’s occupation gives rise to an arguable defence to the claim for possession. CONCLUSION 70. In all of those circumstances, I am satisfied that Everyday is entitled to an Order for Possession. 71. Many of the points raised by the Borrowers and Aprail are more directly relevant to the question of an injunction or the question of damages. Where I have concluded that Everyday is entitled to an Order for possession, the application for interlocutory injunctions is moot. Of course, the Borrowers and Aprail may still be entitled to damages, including exemplary damages. This decision does not render those issues moot. 72. Some of the points raised are also relevant to the question of a discretionary stay on the Order for possession. My preliminary view, subject to anything the parties may say, is that notwithstanding that the Borrowers and Aprail have had the benefit of the period of time between the hearing and delivery of judgment, a stay should be placed on the Order and that it should be a reasonably lengthy stay. I will list the matter for submissions in relation to such a stay and in relation to costs. 21

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