O'Brien v Murphy & Anor (Approved) [2023] IEHC 167 (31 March 2023)

O'Brien v Murphy & Anor (Approved) [2023] IEHC 167 (31 March 2023)

The plaintiff is not entitled to all interlocutory relief as of right due to an evidential issue regarding the appointment and discharge of a prior receiver. However, the plaintiff has established a fair issue to be tried and is entitled to certain prohibitory injunctive relief against both defendants, but not to mandatory orders for possession or sale at this stage.

Citation
[2023] IEHC 167
Parties
Plaintiff: Tom O'Brien; First Defendant: Francis Murphy; Second Defendant: Mike Murphy
Jurisdiction
Ireland
Judgment Date
31 March 2023
Procedural Posture
Interlocutory Application for Injunctive Relief in Plenary Proceedings / Interlocutory (application for Injunction Pending Trial)
Outcome
Interlocutory prohibitory injunctions granted in part; mandatory relief for possession and sale refused at this stage; matter listed for further directions.
Legal Topics
Receivership, Mortgage Enforcement, Injunctive Relief, Possession Proceedings, Assignment of Security, Adverse Possession, Family Home Occupation, Balance of Convenience, Mandatory and Prohibitory Injunctions
Property Law Banking Law Equity Civil Procedure Receivership Mortgage Enforcement Injunctive Relief Possession Proceedings +5 more

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Parties

Tom O'Brien

Plaintiff

Francis Murphy

First Defendant

Mike Murphy

Second Defendant

Procedural Posture

Interlocutory Application for Injunctive Relief in Plenary Proceedings / Interlocutory (application for Injunction Pending Trial)

Legal Issues

  1. 1 Whether the plaintiff receiver is entitled to interlocutory injunctive relief against the defendants, including mandatory orders for possession and ancillary prohibitory orders
  2. 2 Whether the appointment of the plaintiff as receiver was valid given the prior appointment and discharge of an earlier receiver
  3. 3 Whether the second defendant has any legal entitlement to occupy the property or resist possession

Ratio Decidendi

The plaintiff is not entitled to all interlocutory relief as of right due to an evidential issue regarding the appointment and discharge of a prior receiver. However, the plaintiff has established a fair issue to be tried and is entitled to certain prohibitory injunctive relief against both defendants, but not to mandatory orders for possession or sale at this stage.

Court Disposition

Interlocutory prohibitory injunctions granted in part; mandatory relief for possession and sale refused at this stage; matter listed for further directions.

Orders

  • Orders in favour of the plaintiff as against both defendants in the terms of paragraphs 3, 8, 9, 10, 11, 12 and 13 of the plaintiff’s notice of motion dated 3 July 2019 (prohibitory and ancillary reliefs, but not possession or sale).
  • Matter listed for mention on 21 April 2023 for legal costs and further directions.