Judge criticises fund’s ‘cavalier’ attitude to dairy farm owner

A High Court judge has criticised a finance fund's "cavalier" attitude to its dealings with a woman whose company operates a dairy farm in Co Tipperary.

Ms Justice Tara Burns made the remarks when granting Anne Cody an injunction restraining a receiver appointed by Kenmare Property Finance dealing with her lands pending the outcome of her High Court case.

In her recently published judgement, the judge was “unimpressed” with Kenmare’s “cavalier” attitude to the fact it issued a demand for more than €3.48m from Ms Cody when, on the fund’s own reckoning, she was only required to pay about €600,000 on foot of a guarantee limited to a first legal charge over the lands.

Kenmare says the current market value of the land is about €600,000 but Ms Cody says it is about €200,000.

Significantly lesser sum

Ms Justice Burns was also unimpressed at Kenmare asking the court to disregard the discrepancies between the sum demanded and the “significantly lesser” sum due, because, it argued, that lesser sum is owed in any event and there would be cost implications for Kenmare in carrying out these steps again.

"The people of Ireland are entitled to expect in their dealings with the banks that demands made of them are lawful and accurate and that care is exercised in computing and claiming the amounts due.

“On the other side of the fence, individuals who have a liability to a bank must face up to such liability and the courts will not entertain groundless baseless assertions that sums are not due and owing.”

She ruled that Ms Cody, represented by Hugh McDowell BL, instructed by solicitor Robert Dore, had established a bona fide question to be tried with regard to the legality of Kenmare's demand on her, which in turn affected the validity of its appointment of Declan Taite as receiver to the relevant lands.

Based on those findings, she granted an injunction, to continue pending the outcome of Ms Cody's case, restraining the receiver dealing with the lands at Gortderrybeg, Roscrea. The case is expected to be heard later this year.

Credit facility

Ms Cody owns the lands, which are leased to Ballymore Farms Ltd, a company controlled by her and used for dairy farming. The proceedings arose from a guarantee executed in 2006 by Ms Cody concerning a credit facility provided by Anglo Irish Bank plc to her husband and his business partner. Her guarantee was limited to a first legal charge for the bank over the Gortderrrybeg lands.

After her husband and his business partner defaulted on the credit facility, proceedings were instituted against her husband by Kenmare, which had acquired the Anglo facility, and judgment for €1.7m was entered against the husband in December 2018.

Earlier, on May 31st 2017, Kenmare demanded Ms Cody pay it some €3.48 million by June 6th, 2017 failing which it reserved the right without further notice to avail of other remedies, including to appoint a receiver over the lands. It also informed her, if she had a proposal which might influence the decision to appoint a receiver, to inform it immediately.

Ms Cody did not contact Kenmare on foot of the letter and Mr Taite was appointed receiver over the lands on June 16th 2017.

In her High Court proceedings, Ms Cody claims the demand is unlawful as it reflects the entire debt owing on foot of the credit facility rather than the limited amount she guaranteed and therefore the appointment of a receiver is void.