Injunction dismissed as tenant failed to meet high threshold for mandatory relief despite balance of justice claim.

COMMERCIAL COURT

[2025] IEHC 585

RECORD NUMBER 2025.3891

THE HIGH COURT

BETWEEN

PERFECT STRIPE LIMITED t/a GRAFTER

PLAINTIFFS

AND

KEN FENNELL AND BRENDAN O’REILLY IN THEIR CAPACITY AS JOINT

RECEIVERS OF WONDER BAY LIMITED (IN RECEIVERSHIP), CROSSVILLE

PROPERTIES LIMITD (IN RECEIVERSHIP) AND DISCOVERY DAWN

LIMITED (IN RECEIVERSHIP)

DEFENDANTS

JUDGMENT of Mr. Justice Michael Twomey delivered on the 31st day of October, 2025

INTRODUCTION

1. The defendants (the “Receivers”) took possession of three office buildings in Dublin (i.e. at St. Stephen’s Green, Ely Place and Leeson Street) which were owned and operated by a group of companies (the “McKillen Group”). The Receivers were appointed by a group of companies (the “RELM Group”) that had lent funds to the McKillen Group to finance the acquisition of those three properties.

2. The Receivers were appointed when one of the companies in the McKillen Group, the plaintiff (“Grafter”), had failed to pay over €3 million of the rent, as set down in the leases of the three properties. As the rent was used by other companies in the McKillen Group to pay the interest to the RELM Group, this failure by Grafter to pay the rent gave rise to an event of default under the relevant loan and security agreements. This failure by Grafter to pay the rent therefore led to the Receivers ultimately entering the three properties on 23 June 2025 and so Grafter, as the tenant, lost possession of those properties on that date.

3. On 10 July 2025 Grafter issued proceedings seeking, amongst other things, an order that the Receivers vacate the three properties. On the same date Grafter brought a motion seeking an interlocutory injunction requiring the Receivers to deliver up possession of the properties, pending the trial of the action. This judgment relates to that application for an injunction which was heard by this Court on 10 October 2025.

4. In support of this application, the person who controls the McKillen Group, Mr. Paddy McKillen Junior (“Mr. McKillen”), claims that the balance of justice demands that the Receivers give back possession of those properties to Grafter, pending the trial of the action. Thus, even though Grafter has failed to pay over €3 million of the stated rent in the leases, Mr. McKillen nonetheless claims that ‘justice’ demands the return of possession of the properties to Grafter. In this regard, Mr. McKillen made a number of novel arguments as to why it is just that a tenant, who has failed to pay the rent set out in the leases, should nonetheless be given back possession of the properties.

5. Firstly, Mr. McKillen claimed that the stated rent in the relevant deeds (which, it is to be noted, were signed by Mr. McKillen on behalf of both the landlord and the tenant) is not in fact the actual rent which is due and owing. Instead, he claims that the actual rent, which Grafter is legally obliged to pay, varies depending on the interest, which is due under a loan agreement between the landlord and its lender (to which Grafter was not a party). Thus, in direct conflict with the express terms of the deeds which he signed, Mr. McKillen says that Grafter does not in fact owe rent arrears of €3 million, and so he says that justice demands that Grafter be given back possession of the properties.

6. Secondly, he claims that it is ‘unconscionable’ that he (on behalf of Grafter, as the tenant) was pressurised by a lender into increasing the rent payable by Grafter on the properties. This pressure, he says, was applied so that Grafter would fund its sister companies in the McKillen Group (the landlords), to enable them to meet an increase in repayments, arising from an increase in interest rates. However, this type of pressure on a borrower (or in this case, on the sister company of a borrower) to meet increased repayments, is the type of pressure which most ordinary individuals feel, every time there is an increase in home interest rates. Nonetheless, Mr. McKillen, as a businessman heavily involved in the property business, claims that this pressure on him/Grafter was ‘unconscionable’. On this basis, he makes perhaps his most novel claim on behalf of Grafter, namely that this alleged unconscionable behaviour means that Grafter should be given back possession of the properties. To put this matter in plain terms, a businessman feels financial pressure to comply with his (or a sister company’s) freely entered contract to increase loan repayments, when interest rates rise. However, this pressure, which many individual borrowers feel, does not amount to unconscionable behaviour on the part of the lender.

7. Thirdly, he points out that the business carried on by Grafter was that of providing serviced offices from the three properties to third party licensees. Grafter submitted that this business was ‘very successful’ with ‘high-profile, high-quality companies, such as OpenAI and others’. However, Mr. McKillen claims that the Receivers, when they took possession of the properties, misappropriated Grafter’s business. Grafter claims the Receivers misappropriated its business by, amongst other things, continuing to allow the licensees to use the serviced offices in the three properties and continuing to collect licensee fees from those licensees. However, as noted below, Grafter’s business was, in effect, one of subleasing office space. The provision of this business by Grafter necessarily came to an end when it had no offices to sub-lease (because it failed to pay the rent on the offices that it was, in effect, sub-leasing). However, in support of this claim of misappropriation, Grafter states that the Receivers did not give Grafter adequate notice that they were going to take possession of the properties, so that Grafter could have shut down that business (‘We could have shuttered the business if they’d given us proper notice’). Thus, Mr. McKillen appears to be making the novel claim, on behalf of Grafter, that another reason why ‘justice’ demands that Grafter be given back possession of the properties is that Grafter was denied the opportunity to shutter a successful business and force high-profile and high-quality companies to find other offices.

8. Fourthly, he claims that the Receivers did not effect their re-entry to the properties in a ‘peaceable’ manner. In support of this argument, he states that the Receivers procured the security company, contracted by Grafter for the three properties, to remotely disable the magnetic locks on the properties, thereby enabling Grafter to enter those properties. However, opening a door, whether by releasing the magnetic closing mechanism, or by simply twisting a key in a lock, would appear to this Court be the epitome of a ‘peaceable’ or non-violent entry. Nonetheless, Mr. McKillen claims that this re-entry on the party of the Receivers to the properties was not peaceable and so justice demands that Grafter be given back possession of the properties.

9. For the reasons set out hereunder, this Court does not believe that these claims, and the others set out hereunder, are such that they raise a ‘fair issue’ to be tried or that these claims are such that ‘justice’ requires that Grafter be granted possession of the properties. However, all this Court has to determine, at this interlocutory stage, is whether a ‘fair issue’ has been raised (and these claims can be properly considered at the trial of the action). Nonetheless, it seems to this Court that, rather than there being some injustice to Mr. McKillen/Grafter, if Grafter is not given back possession of the properties pending the trial, there would in fact be an injustice to the receivers if this were to occur. This is because the receivers (acting for the benefit of the persons who had funded the acquisition of the properties) would be giving back possession of properties (pending the trial) to a tenant who has failed to pay over €3 million of the rent stated in the leases for those properties. To adapt the words of Carroll J. (in Sweeney (F.G.) Ltd v Powerscourt Shopping Centre [1984] WJSC-HC 2859 at pg. 4), this would involve the tenant getting a ‘free ride’ in the properties at the expense of the company that had funded the acquisition of those properties. This cannot, in this Court’s view, amount to ‘justice’, which is the key element in the test for determining whether to grant an interlocutory injunction on the ‘balance of justice’.

BACKGROUND

10. Wonder Bay Limited, Crossville Properties Limited and Discovery Dawn Limited (the “Landlords”) own properties at 6/7 St. Stephen’s Green, Dublin 2, 10 Ely Place, Dublin 2 and 41 Leeson Street, Dublin 2, respectively (the “Properties”). The Landlords are all part of the McKillen Group of companies along with Grafter (the “Tenant”). Grafter entered into:

• a Lease dated 14 June 2022 of 6/7 St. Stephen’s Green, Dublin 2 (“Stephens Green”) with Wonder Bay Limited (as varied by a Deed of Variation dated 19 December 2022);

• a Lease dated 20 December 2021 of 10 Ely Place, Dublin 2 (“Ely Place”) with Crossville Properties Limited (and as varied by a Deed of Variation dated 31 August 2023);

• a Lease dated 26 July 2021 of 41 Leeson Street, Dublin 2 (“Leeson Street”)with Discovery Dawn Limited (as varied by a Deed of Variation dated 19 December 2022), which three leases are together referred to herein as the “Leases”.

11. Mr McKillen was a director of, and controlled, both the Tenant and the three Landlords when the Leases and the Deeds of Variation were executed. The acquisition of each property was financed by the McKillen Group using special purpose companies, i.e. each of the three Landlord companies. These are special purpose companies since their only role was to act as the owner and the lessor of the Properties. For this purpose, each of the Landlords borrowed1 the funds to finance the acquisition of the relevant property under the terms of Facility/Loan Agreements dated 14 June 2022 (Stephen’s Green), 31 August 2023 (Ely Place) and 26 July 2021 (Leeson Street) (the “Facility Agreements”). Under these agreements, Wonder Bay Limited borrowed from RELM Loan Opportunities 4 DAC, Crossville Properties Limited from RELM Loan Opportunities 5 DAC and Discovery Dawn Limited from RELM Loan Opportunities 3 DAC. Each of those lenders are part of the RELM Group of companies and are collectively referred to as the “RELM Group”.

12. Grafter was, in essence, the operating company in the McKillen Group, when it came to the Properties, since it held a leasehold interest in each of the properties and carried on In the case of Crossville Limited, the structure to fund the purchase of Ely Place involved Opel Barn Limited, which was the party to the loan agreement with the RELM Group and which acquired the shares in Crossville Limited, but the security for that loan was provided by Crossville Limited. business using those premises. The business which was carried on by Grafter was that of providing serviced offices to third parties. Thus, Grafter entered into licence agreements with various third parties permitting those third parties to use the serviced offices in those properties in return for the payment of licence fees to Grafter.

13. As the Landlords were special purpose companies, their only income was the rent under the Leases, which they received from Grafter. The total debt owed by the three Landlords to the RELM Group was €25,725,696 as of 31 July 2025. Debentures were executed by the Landlords which granted companies in the RELM Group (the “Lender”) a charge over the bank accounts into which the rent under the Leases was to be paid.

14. It was anticipated that the rent would be used by the Landlords to offset the interest payable by them on the loans they had received from the RELM Group. After interest rates rose in recent years, the rent was increased under each of the Leases, in order to meet the increased interest repayments. The rent increase was achieved by the execution of the Deeds of Variation (to which reference has already been made) between the Tenant and each of the Landlords.

15. It is relevant to note that these Deeds of Variation amounted to the Tenant (controlled by Mr. McKillen) agreeing with the Landlords (controlled by Mr. McKillen) to increase those rents. Thus, if Mr. McKillen was happy, in his capacity as the controller of the Tenant, and in his capacity as the controller of the Landlord, for the rent to increase, then the rent increased. It is also clear that this rental increase occurred so that the Landlords would have sufficient funds to meet the interest payments on the loans taken out by the Landlords to acquire the Properties. In this regard, it is to be noted that the only signature of the Deeds of Variation is that of Mr. McKillen, as he signed each of the three Deeds of Variation on behalf of the Tenant and each of the Landlords.

16. As a result of the failure by Grafter to pay the rent stated in each of the Leases, the three companies in the RELM Group appointed the defendants as joint receivers over the Landlords under three Deeds of Appointment dated 10 March 2025.

17. Based on the rent stated in the Leases, there was a combined figure of €3,821,639 in rent owed by Grafter to the three Landlords in respect of the three Properties when the Receivers were appointed. It is not disputed that soon after the appointment of the Receivers on 10 March 2025, negotiations commenced between Grafter and the Receivers with a view to renegotiating the terms of the Leases in order to assist the Receivers in selling the Properties. It is also not in dispute that this engagement resulted in an abatement of the rent for the properties for April and May 2025 to €28,000, €14,583 and €12,500 per month for St. Stephen’s Green, Ely Place and Leeson Street, respectively.

18. However, these negotiations did not lead to the desired result from Grafter’s perspective, since by letters dated 10 June 2025 to Grafter, the Receivers claimed there were arrears of rent due as of that date from Grafter of €2,674,385 (under the St. Stephen’s Green Lease), €321,384 (under the Ely Place Lease) and €530,669.22 (under the Leeson Street Lease). In these letters, the Receivers formally demanded payment of those arrears within seven days.

19. As there was no payment following this demand, on 18 June 2025, the Receivers served Forfeiture Notices providing two days for Grafter to discharge the arrears of rent.

20. As there was no payment following this forfeiture notice, on 23 June 2025 the Receivers obtained access to the Properties and changed the locks and thereby took possession.

21. On 22 July 2025, Grafter brought the motion, now before this Court, seeking an interlocutory injunction which, amongst other things, would result in Grafter regaining possession of the Properties.

The law applicable to interlocutory injunctions

22. The law in relation to the granting of interlocutory injunctions is not in dispute as it has been clearly set down by the Supreme Court in Merck Sharpe and Dohme v. Clonmel Healthcare [2019] IESC 65, per O’Donnell J. In light of this decision, it is clear that for Grafter to be granted an interlocutory injunction, it must establish that:

• if it was to succeed at the trial, a permanent injunction, in the same form sought pending the trial, might be granted by the trial judge;

• that there is a fair issue to be tried;

• if so, that the balance of justice (or balance of convenience) favours the grant of an injunction pending the trial. The Supreme Court in Merck also made clear that the primary task of the court is to do justice between the parties pending the trial and the most important element is usually, but not always, the question of the adequacy of damages. However, the Supreme Court also noted that, in commercial disputes, a court should be robustly sceptical of a claim that damages are not an adequate remedy.

23. As regards the first element of this test, it seems clear that if Grafter was successful at the trial, a permanent injunction would be granted in this case. A FAIR ISSUE TO BE TRIED?

24. Accordingly, the first substantive issue to consider is whether Grafter has raised a fair issue to be tried in its various arguments as to why it should be granted the interlocutory injunction.

Dispute over the amount of rent

25. The key argument relied upon by Grafter is that it does not in fact owe the rent that is stated in the Leases to be owed by it. In this regard, Grafter claims that, notwithstanding the express terms of each of the Leases providing for the stated rent to be paid by Grafter to each of the Landlords, there was an understanding that the rent which was payable in respect of the Properties was not to be this amount. Instead, it claims that the rent was to be the equivalent of the interest which was owed by the Landlords to the RELM Group in respect of the loans to finance the purchase by the Landlords of the Properties.

26. In essence, Grafter claims that this Court should ignore the terms of the three contracts it signed regarding the rent it was to pay. Instead, it says that any money it paid as rent to the Landlords should be deemed to be repayment of the Landlords’ loans to the RELM Group. Crucially, it also claims that if any part of the McKillen Group made interest/loan repayments to the RELM Group, this should be deemed to be rent paid by Grafter to the Landlords. Based on this argument, it claims that interest/loan repayment were in fact made by other companies in the McKillen Group to the RELM Group and when these are taken into account, Grafter claims that the arrears of rent of over €3 million are not in fact due by it. In seeking this injunction, it makes clear to this Court that it is willing to pay €1.6 million to the Receivers, which would seem to be its estimate of the actual arrears of rent on the Properties.

27. In support of its argument, Mr. McKillen claims that the rent increases which he agreed to in December 2022 and August 2023 under the terms of Deeds of Variation, on behalf of the Tenant and on behalf of the Landlords, were above market rates. It is clear that he agreed to pay those increased rents, on behalf of one McKillen Group company (the Tenant), in order to ensure that the three other McKillen Group companies (the Landlords) had sufficient funds to meet the interest repayments due to the RELM Group. However, the implication is that he was not simply increasing the rents to what he says was above market rates to ensure that the interest was paid, but rather that he would not have done so, unless there was an understanding with the Lender that rent was not in fact the rent stated in the Leases, but rather that the understanding was that ‘rent equals the interest’ and the ‘interest equals the rent’.

28. In support of this claim, he points out that the Landlords were special purpose companies, with no other income apart from the rent, and so the failure to increase the rent would have resulted in the Landlords breaching their financial covenants under the Facility Agreements they had with the RELM Group.

29. Mr. McKillen also made the following sworn statement in support of his application: ‘In fact, [Grafter] was advised by RELM that, due to the fact that the increase in interest rates had resulted in a decrease in commercial property prices, RELM was in breach of the loan covenants between RELM and its own senior lender. RELM stated that if the Landlords did not cause [Grafter] to agree to the increased rent, then RELM would appoint a receiver.’

30. He also pointed to an email exchange, beginning on 28 October 2022, that he had with Mr. Paul Dowling (a director of RELM Loan Services Limited, a service provider to RELM Group). In this exchange Mr. Dowling outlines the rental levels which needed to be paid by Grafter to the Landlords to ensure that the Landlords were complying with their financial covenants to the RELM Group. In the first email, Mr. Dowling states: ‘Further to your request see below rental levels to comply with the covenants (also adjusted below). Would be grateful if you would have Ken confirm to MCF these deeds of variation have been sorted.

Thanks

Fox Connect - €375,000. ICR reduces to 1.1x

Discovery Dawn - €350,000.

Insightful Connections - €300,000 ICR Cov reduces to 1.1x

Viken Wood - €225,000. ICR Cov reduces to 1.1x

Supreme Way - €310,000

Cullina Properties - €165,00. ICR Cov reduces to 1.1x

Wonder Bay - €1,750,000 pa. Creative Talent - €130,000 pa.

Zeal Quest – ICR Cov reduces to 1.1x’

In the email of 19 December, 2022, Mr. Dowling states to Mr. McKillen that: ‘I cant draw any further funds in the new year unless the lease variations are all in, signed and stamped in the next 48 hours.’

31. Grafter submitted that the RELM Group was therefore pointing out to Mr. McKillen/Grafter that the RELM Group would be in breach of its own funding agreements, if it did not have the funds from the McKillen Group to meet its financial commitments.

32. However, this email exchange is little more than what one would expect from a lender, who is anxious that the borrower meets its commitments, so that the lender can also comply with its own financial commitments. In this regard, the two emails simply outline the factual financial position to Mr. McKillen, the controller of the Tenant and the Landlords, and in particular the amount of rent which would have to be paid by the Tenant to ensure that the Landlords meet their interest repayment obligations and remain in compliance with their covenants.

33. It is important to note that this is the only documentary evidence, which Mr. McKillen has provided to support his claim that there was an understanding (presumably between the McKillen Group and the RELM Group) that Grafter was not in fact obliged to pay the rent stated to be due under the Leases, despite agreeing to do so. In this Court’s view, this is the type of exchange in which any prudent lender would be involved, and it is a very long way from being evidence of an agreement between a Landlord and a Tenant (or indeed with the RELM Group) that no rent or reduced rent was payable if, for whatever reason, no interest or reduced interest was due for a certain period on the Landlord’s borrowings.

34. In essence, in these exchanges the party lending money to the Landlords was simply asking Mr. McKillen to have the Tenant increase the rent payable to its sister companies, the Landlords, to meet the increased interest obligations of the Landlords to the Lender, otherwise the lender would be in breach of its own financial covenants. There is nothing unusual about this. It is simply a reflection of what had been agreed between the parties and the financial reality if the Landlords did comply with their loan agreement. Yet, Mr. McKillen seems to be relying on these exchanges as evidence that there was a variation in the terms of the Leases, between the Tenant and the Landlords. Specifically, he is suggesting that this is evidence that when the Leases said a certain monetary figure was payable by the Tenant, in fact the agreement between the Landlord and Tenant, and presumably also the Lender, was different. Instead, according to Mr. McKillen, the Leases were to be read as meaning that ‘rent was interest’ and ‘interest was rent’. This then leads to Mr. McKillen’s claim now, that if some company in the McKillen Group paid interest off the interest due on the Lender’s loans to the Landlords, then a reduced amount of rent (or arrears of rent) was then payable by Grafter under the Leases. In this Court’s view, this argument is not sustainable, not only because this email exchange says nothing of the sort, but also for several other reasons.

35. Firstly, this claim runs completely contrary to the terms of the Leases entered into by Grafter with the Landlords. These contracts make clear that the contractual terms which bind the parties are those set out in the document and not some other understanding which Mr. McKillen may have of the arrangement. In particular, Clause 6.9 of the Lease dated 14 June 2022 between Grafter and the Landlord of Stephen’s Green, states that: ‘The Tenant acknowledges that this Lease has not been entered into in reliance wholly or partly on any statement or representation made by on behalf of the Landlord except any such statement or representation that is expressly set out in this Lease, given in replies to pre-lease enquiries or in correspondence between solicitors for the Landlord and the Tenant.’ It is to be noted that an identical clause is contained at Clause 6.10 of the Leeson Street lease and a similar clause is contained at Clause 7.6 of the Ely Place lease.

36. Despite this, Mr. McKillen is seeking to make an argument that the Lease was varied by a statement or representation made by the Landlord, or more likely by an entity, which is not even party to the Lease (the RELM Group).

37. The Deed of Variation dated 19 December 2022, which varies the foregoing Lease (and the other two Deeds of Variation are in similar terms) between the Landlords and the Tenant is signed only by Mr. McKillen. The operative clause of the Deed of Variation (Clause 2.1) increases the rent to €1.75 million per annum for St. Stephen’s Green, in order to ensure that the Landlord will have the funds (in rent) to meet the increased interest payments. If ‘interest was rent’ and ‘rent was interest’, and any payments of interest by other companies in the McKillen Group to the RELM was to be deemed to be rent payable by Grafter to the Landlords, it should have been stated in this Deed that €1.75 million was not in fact the rent payable. No such statement is contained in the Deed. Instead, the Deed confirms the statement in Clause 6.9 of the Lease (that the terms governing the rent were as set out in the Lease and were not varied by any other statements). This is because at Clause 4.1 of the Deed of Variation, it is stated that, ‘Subject to the variations contained in this deed, the parties confirm and ratify the Lease’ (Emphasis added). This means that it was confirmed and ratified that the rent is €1.75 million and that no other statements or representations made by the Landlord are relevant to Grafter’s undertaking to pay this amount of rent.

38. Despite this clear language, Mr. McKillen in his first affidavit dated 22 July 2025, at para. 31, swears as follows: ‘I believe it is unconscionable that the [Receivers] would be entitled to, and the [Receivers] are estopped from, recovering rent that exceeds the ongoing interest liabilities of the Landlords under the Loan Agreements. [Grafter] agreed to the Deeds of Variation on the express basis that the rent payable under the Lease was to be a function of the Landlords’ interest obligations.’ (Emphasis added)

39. Mr. McKillen is therefore stating that rent was not the figure for rent stated in the Lease and that the ‘express basis’ upon which the rent was payable was otherwise. However, the ‘express basis’ upon which something is agreed, is invariably the basis which is expressed in a contract or other amending document. In the Stephen’s Green contract, the ‘express basis’ for the calculation of the rent was that it was a fixed monetary figure, i.e. €1.75 million. There is no mention in the Lease or the Deed of Variation of any connection between that rent and the interest payable by the Landlord to its lender. Indeed, as already noted, when it comes to the express basis of the rent being payable, the Lease makes it expressly clear that only statements made in writing in the Lease are relevant when determining the obligations of the Tenant.

40. Thus, the suggestion by Mr. McKillen that there was in effect an agreement between the Landlords and the Tenant (or indeed between the McKillen Group and the RELM Group) that rent equals interest and interest equals rent is completely unsustainable. For this reason, it is not fair issue to be tried, that the Tenant was relieved from its contractual obligation to pay the rent stated in the Lease, as alleged by Mr. McKillen.

41. Secondly, the suggestion by Mr. McKillen that there was an understanding between the Tenant and the Landlords (or with the RELM Group) that ‘interest equals rent/rent equals interest’ is hard to square with the first response of the Tenant to demands for rent, on behalf of the Landlords. These demands were made by solicitors for the Receivers by letters dated 10 June 2025. If the understanding was, as Mr. McKillen suggests, then logically the first thing the Tenant would have stated, when the rent demand was made by the Landlord/Receivers, would have been to say that no rent was due in light of the understanding/agreement between the parties.

42. Yet, when Grafter responded, through its solicitors, to the demand for rent on 19 June 2025, it instead disputed that rent was due on completely unrelated grounds. It claimed that the Deed of Variation had been procured by the exertion of unreasonable pressure on the part of the RELM Group to increase the rent. Accordingly, this letter went on to claim that the Tenant was not in fact in arrears of rent but was in credit. In the same letter, Grafter also claimed that Grafter had discharged capital expenditure costs on the premises which the Landlord agreed to pay, and which operated as an effective set off against any rent due.

43. It is striking therefore that there was absolutely no mention of the argument which is now being put forward that ‘rent equals interest’. It is hard to believe that if there was genuinely an understanding that rent equals interest, as now claimed by Mr. McKillen, that this would not have been the primary response on 19 June 2025 to the demand for rent.

44. Thirdly, the real problem for Mr. McKillen is that there is absolutely no documentary evidence which supports his claim that the RELM Group agreed that any payments made by the McKillen Group on behalf of the borrower Landlords would be treated as being in satisfaction of Grafter’s rental obligations to the Landlords under the Leases (to which, of course, the RELM Group was not a party). Mr. McKillen might have liked that he had agreed with the RELM Group, that interest is rent/rent is interest, when he was obtaining funds from them. However, as noted by Clarke J. (as he then was) in ACC Bank plc v Kelly [2011] IEHC 7 at para. 7.6: ‘It is not open to a borrower to disregard the terms and then complain about them later when they do not suit. The time to see that they suit is before signing the contract.’ Applying this logic here, if ‘rent is interest/interest is rent’ was a term of the arrangement as claimed by Mr. McKillen, the time to insert that term in the Leases was before the Leases were signed.

45. For all these reasons, this Court concludes that the argument that Grafter does not owe the amount of rent stated in the Leases, but some lesser amount, because of an understanding that ‘rent is interest and interest is rent’, is not a fair issue to be tried in this case Other issues which were claimed to be fair issues to be tried

46. While the main argument made by Grafter in support of its application for an injunction was the claim that it did not in fact owe the rent stated in the Leases, it did make a number of other claims which are now considered in turn. Alleged unconscionable pressure to increase rent?

47. Mr. McKillen claims that the Tenant was unlawfully pressurised to increase the rent to the Landlords and that accordingly it would be ‘unconscionable’ for the Receivers to recover the rent under the Leases.

48. In considering this claim, it is important to note that when the Tenant agreed to increase the rent payable to the Landlords under the Deeds of Variation, Mr. McKillen controlled the Tenant and the three Landlords.

49. On one level this means that Mr. McKillen is, in effect, claiming that he, as the person controlling the Tenant, was pressurised into agreeing to increase the rent with himself, as the person controlling the Landlords. However, it seems that his argument is, in fact, that the Lender to the Landlords (the RELM Group) pressurised him (as controller of the Tenant) into signing the Deeds of Variation with the Landlords (whom he also controlled). In this regard, it is to be noted that under the Facility Agreements, the Landlords agreed to have a ‘rent to interest’ ratio of 1.10:1, in order that there would always be sufficient monies in the rent account to pay the interest on each of the three loans for the three Properties. When interest rates increased, this left two options. Either the Landlords (or indeed some company in the McKillen Group) had to repay capital (or pay the increased interest) to the RELM Group to ensure that this ratio continued, or the Tenant (also in the McKillen Group) had to increase the rent it was paying to the Landlords. Mr. McKillen, on behalf of Grafter, chose to increase the rent that the Tenant was paying, in order to ensure that the Landlords complied with their covenants in the Facility Agreements. Now, he claims that this increase is unenforceable as he was pressurised to increase the rents by the RELM Group, and he claims that this increased rent was not a market rent.

50. His claim therefore is that, because of increased interest rates Mr. McKillen, a businessman, felt so pressurised into agreeing a rental increase to meet those increased interest payments, that a court should deem that rental increase unlawful. In this Court’s view, this claim is not supported by the authorities. It is the equivalent of a borrower saying that they felt ‘under pressure’ to increase their loan repayments when interest rates rose (which they had contractually agreed to do), and that on this basis, the increased payment was unlawful. There is nothing unlawful or unconscionable about a lender notifying a borrower that in light of interest rate increases, they will have to increase their repayments, as the borrower had agreed to do. This is a normal fact of business and everyday life. Indeed, individuals on a daily basis are ‘forced’, due to their financial circumstances, into making decisions they would prefer not to make by banks, suppliers, contracting parties etc. It might even be possible that Mr. McKillen, as a businessman, could have been involved in negotiations with third parties, where Mr. McKillen was the one in the stronger position and so was able to demand certain terms from a third party, that the third party felt ‘forced’ to accept, in order to get the deal. This would not make that deal unconscionable or unlawful. It is simply a fact of commercial life that parties are regularly forced or feel pressurised to make or honour financial commitments that they would prefer not to have to make. This issue is discussed by Charleton J. in ACC Bank v Dillon and Others [2012] IEHC 474 at para. 6 in very vivid terms, where the defendant argued that he signed a personal guarantee, which he said was demanded by his bank under duress and so was unlawful. Charleton J. rejected the claim that the guarantee was procured by duress, despite the defendant claiming that the pressure he felt from the bank to sign the guarantee was as if: ‘a mad bomber had jumped on a bus full of kids and I was told everything is going to blow up or else you sign this. That’s not what you’d call a choice. There was no choice.’

51. This extreme example of alleged pressure and duress in commercial negotiations, which forced someone to sign a document, was not sufficient to render the resulting agreement unenforceable in that case. As noted by Charleton J. at para. 5.2, the ‘law must allow a measure of appreciation to the stresses of commercial negotiation’. Indeed, it seems to this Court that if it were otherwise, it would be almost impossible for the courts to police the behaviour of parties to contracts to ensure that they met this alleged standard of one party to the contract not feeling financial or other pressure to sign that contract or that they had been taken advantage of by the party in the stronger negotiating position.

52. In support of this aspect of his claim, Mr. McKillen stated that the RELM Group made it clear that if the rent was not increased ‘then RELM would cease providing new funding and would appoint a receiver over the Properties.’ However, this is not unlawful pressure, this is the reality for any person taking out borrowings who does not meet the repayments, i.e.

the lender may appoint a receiver. If Mr. McKillen felt under pressure to meet the increased interest repayments, due to rising interest rates, or if he felt that the bank/lender was in the stronger negotiating position, as it held security which it was entitled to enforce, it was because of his own failure to ensure that Grafter paid the rent stated in the Leases. In this regard, he was in no different a position than many other borrowers who have to increase their repayments due to an increase in interest rates. Accordingly, his company’s decision to meet those increased interest payments is binding on it and it is not unconscionable for a court to enforce it. Accordingly, this is also not a fair issue to be tried. Receivers failed to give reasonable notice when terminating negotiations?

53. Grafter also claims that when the Receivers engaged in good faith negotiations in April and May of 2025, regarding the rent payable under the Leases, they were required to give reasonable notice terminating those negotiations before any actions could be taken by the Receivers on behalf of the Landlords. In this regard, it was on 10 June 2025 that the Receivers first sought the arrears of rent and then on the 23 June, 2025, they obtained possession of the Properties. Mr. McKillen therefore claims that this period of notice was insufficient.

54. In this regard, it is important to note that is not disputed that the engagement by the Receivers with Mr. McKillen in April and May was without prejudice to the Receivers rights under the Leases to full rent and its lawful remedies thereunder. Thus, when the negotiations were not successful, it is clear that the Receivers were entitled to proceed to enforce the security. Accordingly, the most that Mr. McKillen can say in this regard is to refer to his ‘belief’ about how matters might proceed if the negotiations were unsuccessful. He states that he:

‘believed that the parties were negotiating in good faith and that no steps would be taken regarding any enforcement until those negotiations were concluded.’2 It is to be noted that Mr. McKillen does not set out what amount of notice it required, over and above the 13 days’ notice Grafter received, between 10 June and 23 June, Nor indeed does Mr. McKillen state what Grafter needed the additional time for, or what it could have said or done with more time, which might have persuaded the Receivers not to proceed or otherwise changed the outcome.

55. In all these circumstances, it seems to this Court that 13 days was more than enough time and therefore this Court does not believe that this is a fair issue to be tried. The Receivers did not effect peaceable re-entry to the Properties?

56. Grafter claims that forfeiture by re-entry can only be effected peaceably by the Receivers and/or in compliance with the Leases, and this was not done in this case and so it claims that possession of the Properties was obtained unlawfully.

Stephen’s Green

57. In relation to Stephen’s Green, the Receivers state that, for them to effect re-entry, the magnetic lock system was remotely disabled and that two padlocks were removed from gates in front of the glass doors of the building. On this basis, the Receivers say that the only action which arguably involved force (concerning any of the three Properties) was the removal of these two padlocks. However, they say this was peaceable and/or permitted, in light of the express terms of that Lease. In this regard, Clause 6.1 of the Stephen’s Green Lease specifically states that if the rent shall be unpaid (and there is no dispute between the parties that the rent, as set down in the Leases, was unpaid) then:

Para. 43 of Mr. McKillen’s grounding affidavit. ‘It shall be lawful for Landlord or any person or persons authorised by Landlord to reenter upon the Demised Premises or any part thereof in the name of the whole and to repossess the same and enjoy the same as if this Lease had not been executed but without prejudice to any right of action or remedy on either party in respect of any antecedent breach of any covenants by the other herein contained. For the purposes of this provision, the tenant acknowledges that the landlord may take such reasonable steps as may be necessary to effect such re-entry.’ (Emphasis added)

58. Thus, under the terms of the Lease, the Receivers, on behalf of the Landlords, were entitled to take reasonable steps to effect re-entry. In this Court’s view, it must be ‘reasonable’ for a landlord, who is not being paid rent by a tenant, and where the lease entitles her to regain possession in those circumstances (as in this case), to simply cut the padlock to gain possession of her property. If this were not case, the tenant, not paying rent, would be able to stymie a landlord from recovering her property, by the simple act of attaching a padlock (and thereby forcing the landlord to go to the considerable cost of seeking a court order to recover possession of her property). In this Court’s view, it could not be right that a landlord, in these circumstances, would have to spend potentially tens of thousands of euros to go to court to seek a court order to simply cut a padlock on her own property to gain possession thereof, where the lease entitles her to that possession where her tenant is not paying rent.

59. Furthermore, it is worth noting that Clause 6.13(b) specifically contemplates damage being caused by the Landlord while exercising a right of re-entry, since it provides that the Landlord should: ‘ensure that as little damage or disturbance is done to the Demised Premises or any fixtures or fittings therein or any goods thereat and as little inconvenience is caused to the Tenant as is reasonably practicable’.

In addition, at Clause 6.13(e) the Landlord is required to ‘make good without delay any damage to the Demised Premises that may be caused by such exercise.’ Thus, it seems to this Court that the cutting of the lock is permitted under the terms of the St. Stephen’s Green Lease and so this claim by Grafter that the re-entry was effected unlawfully does not reach the level of being a fair issue to be tried.

60. As regard the disabling of the magnetic locks. The Receivers state that the magnetic locks were ‘remotely disabled’. Grafter complains that the Receivers must have contacted the security company, with whom Grafter has a contract, to disable the locks and that this was not peaceable re-entry.

61. It is important to step back and consider the effect of what Grafter is saying. In essence, it is saying that, although it was not paying the rent stated under the Lease of Stephen’s Green (it was €2.5m in arrears under that particular Lease) and although the Receivers had a right of re-entry in those circumstances, Grafter should now be granted possession of the property, because of the manner in which the Receivers took possession of Property (i.e. it did not break down the door or assault someone, but rather it got someone to open the door for them).

62. This Court sees no merit in this argument. Getting someone to deactivate a magnet to open a door is analogous to getting a key holder or employee of the Tenant to open a door. It is the epitome of a peaceable re-entry and it is also clearly a ‘reasonable’ manner in which to achieve re-entry, as contemplated by the terms of the Lease. This therefore also does not reach the level of a fair issue to be tried.

Leeson Street

63. As regards the Leeson Street property, the Receivers state that re-entry was achieved by the remote disabling of the magnetic locks. The Leeson Street Lease is in the same terms as the Lease for the Stephen’s Green property and so the claim regarding the magnetic locks also does not reach the level of being a fair issue to be tried, as it was a reasonable way in which to effect a re-entry.

Ely Place

64. As regards the Ely Place property, the Receivers state that re-entry was achieved by the remote disabling of the magnetic locks and the ‘slipping of the front door latch by the locksmith with a piece of plastic’.

65. The Lease for Ely Place is in different terms to the other two leases. Nonetheless, it seems clear to this Court that the opening of a magnetic lock (by having it demagnetised) amounts to effecting a peaceable re-entry (in the sense of not inflicting violence), in much the same way as asking a key-holder to open a door is peaceable re-entry.

66. As regards the ‘slipping’ of the lock using a piece of plastic, Grafter also claims that this does not amount to peaceable re-entry. In this Court’s view, if the slipping of a lock were to be regarded as non-peaceable re-entry (and so, in effect, a violent re-entry), it would mean, in essence, that the only way in which a landlord could exercise her right to regain peaceable possession of her property, to which she is entitled when the tenant fails to pay rent, is to ask the tenant to let her in, or to hope that the door is not locked.

67. This cannot be correct in this Court’s view. It would mean that landlords/receivers would be required, in almost all instances, to spend potentially thousands of euros (in seeking court orders) any time they were entitled to recover possession of their properties, for nonpayment of rent. It seems to this Court that ‘slipping’ a lock is a peaceable way (in the sense of not involving violence) for a landlord/receiver to regain possession of a property. Accordingly, the claims regarding the Ely Place property also do not reach the level of being a fair issue to be tried.

Alleged misappropriation by the Receivers of Grafter’s business?

68. Grafter claims that the Receivers have misappropriated the business of Grafter. They say they have done so, by continuing to allow the licensees to occupy the serviced offices and by securing an alternative company to Grafter (a company called Iconic), to manage the provision of the serviced offices to these licensees. It also points out that employees of Grafter opted to transfer across to Iconic under the Protection of Employees on Transfer of Undertakings Regulations 2003 (S.I. No. 131/2003) (hereinafter “TUPE”).

69. However, this Court does not accept that there was anything unlawful in the Receivers facilitating the licensees to continue carrying on business from the Properties and of course continuing to pay licensee fees for the benefit of the Landlords/Receivers. This is because the ‘business’ of Grafter was the provision of serviced offices to these licensees from the Properties, in which Grafter previously held a leasehold interest. However, on 23 June 2025, Grafter no longer had a leasehold interest in the Properties and so it could no longer provide those serviced offices to the licensees.

70. Furthermore, it was not disputed by Grafter that the obligation of the Receivers is to obtain the best price reasonably obtainable for the Properties. Indeed, Grafter references, at pg. 4 of its written submissions, that it entered into negotiations with the Receivers regarding the Leases ‘with a view to renegotiating their terms to assist the [Receivers] in selling the Properties’. In the ordinary course, ensuring that the best price is obtained for properties, would involve a receiver ensuring that the trade from the properties, and in this case the collection of license fees, continues after the appointment of the receiver. However, the implication of Grafter’s argument that the Receivers took over a business of providing serviced offices from Stephen’s Green, Ely Place and Leeson Street, which business Grafter, it must be remembered, could not provide, is that the Receivers should not have facilitated the continuation of a ‘very successful’ trade from the Properties. The implication therefore of this argument is that the Receivers should have, in effect, forced the licensees to leave the Properties. Yet, if the Receivers had done so, they might have been faced with claims by the Landlords/borrowers, that the Receivers devalued the Properties and wrongfully terminated the income stream (the license fees) which could have reduced the borrowings and which could have increased the sale price of the Properties. The other implication of Grafter’s complaint, that the Receivers should not have facilitated those licensees in carrying on business, is that all the employees of Grafter would end up being redundant. In this regard Grafter itself made submissions that the business of providing serviced offices from these premises was ‘very successful’3 and that there were ‘highprofile, high-quality companies, such as OpenAI and others’4 who occupied the Properties. Yet, there was no suggestion on behalf of Grafter that there was any reality to it being able to conjure up alternative serviced offices for those licensees, to which they could seamlessly move. Quite apart from the practical issues involved, it is also the case that, in light of Grafter’s financial position (to which reference is made hereunder), this would not seem to have been a realistic possibility. Thus, their claim in this regard is lacking in any commercial reality.

71. Similarly, the fact that some employees decided to move to a new business is a choice which the employees made to retain their jobs in a situation where Grafter could no longer provide them with employment, for the simple reason that Grafter failed to pay the rent on the offices which it was licensing to third parties. Accordingly, this decision by employees to seek to retain their jobs in relation to the provision of serviced offices is not evidence of the Receivers misappropriating Grafter’s business.

Transcript pg 10, line 24. Transcript pg 38, line 18.

72. In summary, Grater had been leasing offices from the Landlords, which it, in effect, subleased to its licensees. It stopped paying the rent on the leases, so it had nothing to sublease to the licensees. That was its business. Its business was ‘gone’, because it failed to pay the rent, not because of any actions of the Receivers. The Receivers simply facilitated those licensees who, unlike Grafter, were willing and able to meet their financial obligations to pay the rent/licensee fee. This was not the misappropriation by the Receivers of Grafter’s business. This was the legal and commercial reality of what occurred.

73. Indeed, this commercial reality seems to have been implicitly recognised by Grafter, namely that its business was in effect the sub-letting of offices to licensees, which it could no longer do, when it had nothing to sub-let, as it no longer occupied the premises. This is because one of its complaints, in support of its claim that it should be granted an injunction, was that it was denied the right to shutter up operations, if it wanted to. In this regard, counsel for Grafter complained that ‘[w]e could have shuttered the business if they’d given us proper notice’.5 This submission highlights that there was no commercial reality to the claim that Grafter’s business was misappropriated by the Receivers. Grafter’s business, which was effectively one of sub-leasing offices, disappeared when it had no offices to sublease, because it failed to pay the rent.

74. For all these reasons, the claim that the Receivers misappropriated Grafter’s business does not reach the level of being a fair issue to be tried.

75. If this Court is wrong and any of the foregoing issues amount to a fair issue to be tried, this would not of itself lead to a grant of an interlocutory injunction, since the balance of justice would have to favour the granting of an interlocutory injunction.

Transcript pg. 75, line 28. DOES BALANCE OF JUSTICE SUPPORT GRANTING OF INJUNCTION?

76. In this regard, since this Court does not accept, that it is a fair issue to be tried, that Grafter does not owe the rent which it agreed to pay under the Leases, this Court proceeds on the basis that, for present purposes, Grafter contracted to pay the rent stated in the three Leases. Based on the amounts stated in the leases, the Receivers calculated that that Grafter was in arrears of rent of €3,821,639.10 as of 30 June 2025.

77. Like most commercial disputes, this case is about money. On the one hand, the RELM Group appointed the Receivers as it believes this is the best way for it to recover as much as possible of the sum of the outstanding interest which it is owed. On the other hand, Grafter says to this Court that it has €1.6 million in its solicitor’s client account, which it will pay to the Landlord in rent (and so for the benefit of the RELM Group) in order to recover possession of the Properties along with its commitment to pay the rent into the future.

78. However, it is important to note that Grafter is not undertaking to pay into the future the rent stated in the Leases. Instead, the only reasonable interpretation that can be put on its commitment to pay rent into the future is that it is the rent that Grafter believes is due. This is because this commitment to pay rent, which is given by Grafter is being given in the context of its claim that ‘rent equals interest’, and indeed its claim that the rent it agreed to pay under the Leases is not in fact market rent.

79. It is also relevant to note that in seeking to press the merits of its offer of €1.6 million, in discharge of rent due under the Leases of €3,821,639.10, Grafter pointed out that its financial position was such that it did not itself have €1.6 million. Instead, it states out that it had to source this sum from third parties. Accordingly, it makes the point that this €1.6 million on offer is something which would otherwise not be available to the Receivers (and so not available to the RELM Group).

80. If there were not arrears of the rent stated in the Leases, amounting to €3,821,639.10, this offer of €1.6 million might be a considerable factor in the balance of justice. However, this Court has rejected Grafter’s argument there is fair issue to be tried that the rent of €3,821,639.10 is not due. Accordingly, even if Grafter paid this €1.6 million in rent today, the RELM Group would still be over €2 million out of pocket, based on the rent stated in the Leases.

81. Similarly, if Grafter was undertaking to pay in the future the rent stated in the Leases, this also might be a factor in its favour in the balance of justice. However, no such undertaking was being offered by Grafter.

82. All of this means that Grafter is claiming that the balance of justice favours it being granted possession of the Properties on the basis of it paying a fraction of the outstanding rent and not even undertaking to pay into the future the rent set out in the Leases. This cannot be ignored when it comes to determining what is the ‘just’ solution regarding who should have possession of the Properties, pending the trial.

83. Another way to look at this issue is to ask whether the party seeking relief from a court against forfeiture, or otherwise, is undertaking to pay the rent arrears. In this instance, Grafter is not offering to pay the rent arrears (based on the rent in the Leases). In this regard, in Oyster Shuckers Ltd T/A Klaw v Architecture Manufacture Support (EU) Ltd [2020] IEHC 527, at para. 76, the failure of a tenant to pay or offer to pay the outstanding rent was a factor in the refusal of the court to grant the tenant an interlocutory injunction in that case. At para. 99, Sanfey J. observed: ‘However, the failure to discharge rent in the past and an admitted inability to discharge rent in the future are matters which weigh heavily when assessing the balance of justice.’

84. Similarly, in this case, the failure of Grafter to pay the arrears in full and its failure to undertake to pay the rent stated in the Leases into the future, weigh heavily in favour of refusing the interlocutory injunction that Grafter seeks. One of the reasons it weighs heavily in the balance of justice in favour of the landlord, is because, as noted by Carroll J. in Sweeney (F.G.) Ltd v Powerscourt Shopping Centre [1984] WJSC-HC 2859 at pg. 4 of the judgment, ‘why should a lessee have a “free ride” as far as rent and services are concerned’. Similarly, in this case, this Court cannot see why Grafter/McKillen Group should have a ‘free ride’ at the expense of its lender (RELM Group). In particular, why should the party, that funded the property which Grafter occupies, be required to, in effect, subsidise Grafter’s rent on the Properties.

85. In summary, the balance of justice requires a court to consider the ‘justice’ of the case, when deciding how matters should be regulated pending the trial of the action. In determining this issue, one could ask how could it be ‘just’ to require a landlord/receivers to give back premises to a tenant, who has failed to pay the arrears of rent in full which are due under the lease, and also refuses, in the future, to pay the full rent stated in the Lease? It cannot be just in this Court’s view. Accordingly, this factor weighs heavily in the balance of justice against the granting of the interlocutory injunction.

The financial position of Grafter

86. However, this is not the only factor weighing in the balance of justice against the granting of the interlocutory injunction. This is because when Grafter was making submissions to the Court on what it regarded as the positives for the RELM Group, of it obtaining €1.6 million from Grafter, it flagged the fact that Grafter itself did not have the financial wherewithal to come up with these funds itself. The submissions made it clear that Grafter had obtained these funds from a third party and that these funds would otherwise not be available to RELM Group. In its submissions to court, it said: ‘A critical point, Judge, is that, insofar as the balance of justice is concerned, that's not money that Grafter has. So that's money that's coming from a pot that the receivers and RELM don't have access to. So it's pure windfall, Judge, actually, from the receivers’ perspective.’

87. In its written submissions, Grafter made a similar point when at pg. 3 it stated: ‘Critically, the monies that [Grafter] has undertaken to pay in arrears of rent are being provided by third parties.’

88. The manner of the offer of this €1.6 million does therefore highlight another factor in the balance of justice, namely that Grafter is far from being in a strong financial position. All of this means that if an interlocutory injunction were granted to the Grafter, and it lost at the trial of the action and the injunction had to be discharged at that stage, the prospects of the Receivers recovering the contractually agreed arrears of rent and the contractually agreed rent between now and the delivery of judgment in the action, appear to be remote. This is yet another factor weighing in the balance of justice against the granting of the interlocutory injunction.

89. Furthermore, unlike the challenging financial position of Grafter, there is no evidence that RELM Group could not meet any damages award in favour of Grafter, if the interlocutory injunction is not granted (and at the trial, the court finds that it should have been granted to Grafter).

90. Finally in this regard, no evidence was provided that damages would not be an adequate remedy for Grafter, were it to succeed at trial. In this regard, this a classic commercial dispute, and this Court is required to be ‘robustly sceptical of a claim that damages are not an adequate remedy’ for a party, even if such a claim had been made by Grafter.

91. All of these factors strongly weigh in the balance of justice against the grant of an interlocutory injunction in favour of Grafter.

A mandatory injunction?

92. There is a further point against Grafter. It was made in the Receivers’ written submissions, but it was not addressed by either party at the hearing. It is the fact that the injunction which Grafter seeks is mandatory in nature, since it is clear that Grafter’s leasehold interest in the Properties terminated on 23 June 2025, when forfeiture was effected. The injunction is mandatory because if granted, it would require the Receiver to give up possession of the Properties. At para. 71 of Oysters Shuckers, Sanfey J. noted that in the Powerscourt Shopping Centre case, Carroll J. had held that the defendant had acted: ‘entirely lawfully and in accordance with the lease between the parties in effecting peaceable re-entry, and thus refused to grant what was in effect a mandatory injunction reversing the re-entry.’ (Emphasis added)

93. Similarly in this case, requiring the Receivers to reverse the re-entry would amount to, in effect, a mandatory injunction. On the other hand, leaving the Receivers in place amounts to the preservation of the status quo, pending the trial, since it requires no action on the part of either party.

94. Since Grafter is therefore seeking a mandatory injunction, it seems to this Court that it must establish, not simply that there is a fair issue to be tried, but rather that it has demonstrated a strong case. In this regard, it seems very clear to this Court that none of the issues raised by Grafter come close to establishing ‘a strong and clear case that is likely to succeed at trial’ as required to grant a mandatory injunction (per the judgment of Murray J. in the Court of Appeal decision in Ryanair DAC v Skyscanner Ltd [2022] IECA 64 at para. 124 confirming [2020] IEHC 399).

95. This is a further reason for refusing Grafter’s application for an injunction.

CONCLUSION

96. In this Court’s view, it is clear that Grafter is not entitled to an interlocutory injunction, which would grant it possession of the Properties. In summary, there is no fair issue to be tried, as:

• The Leases clearly stated the rent, and although not determinative, it is to be noted that Mr. McKillen signed the Leases as Landlord and Tenant.

• There is no credible evidence supporting the claim that rent was meant to equal interest, and interest was meant to equal rent.

• The pressure to increase rent on Mr. McKillen/Grafter due to rising interest rates was not ‘unconscionable’ but a normal reality for not just commercial entities, but many individuals with mortgages.

• Re-entry by the receivers to the Properties was both peaceable and lawful under the Leases.

• The claim of business misappropriation lacks merit since, amongst other reasons, Grafter lost its leasehold interest, by failing to pay the rent stated in the Leases, and thus its ability to operate the business.

97. Furthermore, even if there was a fair issue to be tried, under the ‘balance of justice’ test, the injunction would not be granted, since:

• Grafter offered only €1.6 million (less than half the arrears under the express terms of the Leases) and did not commit to paying the rent stated in the Leases going forward.

• Grafter’s financial position is weak, as evidenced by the fact that the offer of €1.6 million came from third parties (and so does not appear to be in a good position to pay damages to the RELM Group, if required to do so).

• There was no evidence that the RELM Group is in a weak financial position (if it had to pay damages to Grafter).

• There was no evidence that damages would not be an adequate remedy for Grafter if it succeeded at trial (and the RELM Group had to pay damages to it).

• Granting the injunction would effectively give Grafter a ‘free ride’ at the expense of the RELM Group, as it would be occupying the Properties without paying the full rent stated in the Leases.

98. Finally, the injunction sought is mandatory (requiring the Receivers to give back possession), which requires Grafter to establish ‘a strong and clear case that is likely to succeed at trial’. Grafter has clearly failed to meet this test, since it did not even establish that there was a fair issue to be tried.

99. This case will be provisionally put in for mention at 10.30 a.m. on 11 November 2025, to deal with any final orders and costs. However, in order to facilitate the parties agreeing all outstanding matters, the parties have liberty to notify the Registrar if such a listing proves to be unnecessary. This is particularly important in light of the clear implication from Word Perfect Translation Services Ltd v. Minister for Public Expenditure and Reform [2023] IECA 189 at para. 94, that there is an onus on lawyers to take a broad-brush approach to costs and not to engage in the inefficient use of court resources and costly ‘nit-picking’.