Woman can challenge EBS appointment of receiver

The Court of Appeal has cleared the way for a woman to challenge the validity of the EBS appointment of a receiver over eight properties in Dublin, purchased in 2005 by her former partner with a €8.3 million loan from the society.

The three-judge court ruled that the woman, who cannot be named for legal reasons, had raised arguable grounds entitling her to further time to appeal a High Court order upholding the validity of the receiver's appointment.

Seven of the eight properties are residential and the woman’s former partner lives in one. The eighth property is commercial.

Substantial property

The woman lives in a ninth “substantial” property with their two children. That property is not a family home within the meaning of the Family Home Protection Act because the couple never married.

After their relationship broke up, a consent settlement order was made at the Circuit Court in March 2008, which provided the woman and her children were entitled to reside at the ninth property.

The woman’s former partner took out a €8.3 million loan with the EBS in 2005 to buy the eight properties. Following failure to meet a demand in 2008 for full repayment, EBS appointed Paul McCann, a partner in Grant Thornton, receiver over those.

EBS also registered mortgages over the eight properties on various dates in 2008.

Giving the appeal court judgment, Mr Justice Gerard Hogan said the fact EBS registered the mortgages in 2008, before the June 2009 registration in the Registry of Deeds of documents including the March 2008 Circuit Court order, was of importance in terms of the priorities affecting the eight properties.

While the High Court granted EBS an order in October 2009 for possession of the eight properties, EBS did not take possession and instead appointed Mr McCann receiver over the properties. The woman objected when he sought in early 2014 to sell two of them, alleging they were left in a “deleterious” condition by EBS.

Mr Justice Hogan said she later admitted stopping attempts by the receiver to sell and there was also evidence she held herself out to tenants as the person to whom rents should be paid.

Court proceedings

Later in 2014, Mr McCann initiated High Court proceedings for possession of two of the properties and restraining the woman and her former partner (who took no part in the case) holding themselves out as entitled to deal with the other properties.

Mr Justice Hogan said the woman had raised two arguable grounds on which to appeal the High Court decision rejecting her claims that the mortgages registered by the EBS, or its appointment of the receiver, were invalid.