Daly & Ors -v- Killally & Anor [2009] IEHC 172 (27 March 2009)

Daly & Ors -v- Killally & Anor [2009] IEHC 172 (27 March 2009)

The Mareva injunction should not be discharged or replaced by undertakings due to concerns about enforceability and the defendant's prior dishonest conduct. However, the injunction should be varied to allow payment of mortgages on identified properties from rental income, and to permit household expenditure up to €10,000 per month, as this balances the need to preserve assets with the defendant's right to reasonable living expenses.

Citation
[2009] IEHC 172
Parties
Plaintiff: Adrian Daly; Plaintiff: Declan Guing; Plaintiff: Frank Lawlor; Defendant: Gerard Killally; Defendant: Richard Connors
Jurisdiction
Ireland
Judgment Date
27 March 2009
Procedural Posture
Civil / Interlocutory Application to Discharge or Vary Mareva Injunction
Outcome
Mareva injunction varied in part; not discharged or replaced by undertakings.
Legal Topics
Mareva Injunction, Secret Profits, Variation of Injunction, Partnership Obligations
Civil Procedure Partnership Law Mareva Injunction Secret Profits Variation of Injunction Partnership Obligations

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Parties

Adrian Daly

Plaintiff

Declan Guing

Plaintiff

Frank Lawlor

Plaintiff

Gerard Killally

Defendant

Richard Connors

Defendant

Procedural Posture

Civil / Interlocutory Application to Discharge or Vary Mareva Injunction

Legal Issues

  1. 1 Whether the Mareva injunction against Mr. Killally should be discharged or varied to allow access to funds for living and legal expenses
  2. 2 Whether undertakings by Mr. Killally are an adequate substitute for the injunction
  3. 3 Whether sufficient evidence was provided to justify variation of the injunction

Ratio Decidendi

The Mareva injunction should not be discharged or replaced by undertakings due to concerns about enforceability and the defendant's prior dishonest conduct. However, the injunction should be varied to allow payment of mortgages on identified properties from rental income, and to permit household expenditure up to €10,000 per month, as this balances the need to preserve assets with the defendant's right to reasonable living expenses.

Court Disposition

Mareva injunction varied in part; not discharged or replaced by undertakings.

Orders

  • Accounts servicing mortgages on specified properties to be unfrozen for mortgage and insurance payments from rental income.
  • Sale of certain jointly owned properties permitted, with proceeds to be paid into court before any distribution.