The High Court has refused to grant an injunction that would temporarily restrain an executive of a Davy company from completing his purchase of commercial units in a Co Mayo shopping centre.
Giving his ruling on Friday, Mr Justice Conor Dignam said he was satisfied the balance of convenience and justice weighed against granting the relief sought by the plaintiff company, Co Mayo-based Arknite Limited, which is in receivership.
However, he was proceeding on the basis that Arknite had established an “arguable” case.
The judge observed that the proceedings were “highly unusual” in that they have been brought against the purchaser, which in this case is the chief executive of Davy Real Estate, David Goddard, who has no legal relationship with the plaintiff company.
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“Far more common”, said the judge, is for an action seeking to restrain the sale of a property to be taken against the vendor.
Arknite claims the receivers purportedly appointed to Units 1-8 at Silverbridge Shopping Centre in Claremorris do not have the power to sell the premises pursuant to a purported security document.
Abuse of process claim
Arknite claims it owns the units and raised various issues regarding an alleged settlement agreement between its directors and financial fund Promontoria Arrow Limited regarding the alleged release of a charge over certain assets if particular financial conditions were met.
The directors are continuing to raise the balance it owes under the terms, it is claimed.
Brian Conroy, for Mr Goddard, said previously that the proceedings were moot and an abuse of process. His client, an “entire stranger” to the plaintiff, entered into an enforceable contract on June 30th, which transferred to him the entire beneficial interest of the property, he said.
Given this contract of sale, the judge on Friday questioned whether an injunction could even be granted as further issues may consequently arise as to who would be entitled to collect rent and whether the purchaser could be exposed to a breach of contract proceedings.
The judge also raised jurisdictional issues in circumstances where the Circuit Court refused to grant an injunction concerning the same premises and the same issues, but with a different respondent. Arknite’s appeal in that action, against financial fund Promontoria and the receivers, is pending before the High Court and formed part of the firm’s argument as to why the sale should not have proceeded.
While the judge felt a “level of discomfort” that the sale went ahead while an appeal was pending, he said there was “no legal impediment” to the transaction.
In the event that Arknite goes on to be successful in its action against Mr Goddard, the judge said, damages would be an adequate remedy and “readily quantifiable” as these are commercial premises.
Counsel for Arknite told the court on Friday that the firm intended to appeal the decision to refuse the injunction.
