Injunction denied for receiver sale; court orders sale of farmlands first to determine Bungalow necessity.

APPROVED 2026 IEHC 122

THE HIGH COURT

2025 No. 2474 P

Between

MARGARET STONES

Plaintiff

and

JOHN COULSTON and EVERYDAY FINANCE DESIGNATED ACTIVITY

COMPANY

Defendants

JUDGMENT of Mr Justice Micheál O’Connell delivered on 3 March 2026

Introduction

1. This is an application by the Plaintiff, one of two mortgagors of certain lands in Offaly, for an interlocutory injunction restraining the sale of those lands by the Defendants – a receiver and the holder of the mortgagee’s title in respect of the lands who appointed that receiver – in the manner proposed by the Defendants, on the grounds that the proposed mode of sale is anticipated to result in a sale at less than market value.

2. There is no dispute between the parties as regards the duties of a mortgagee or a receiver appointed by it when selling mortgaged property in exercise of its powers of sale, which are – in a nutshell – to achieve the best price reasonably attainable for the mortgaged property at the time of sale.

3. A factor that removes from the case of some of the complexities seen in several of the authorities on injunctions to restrain sales by receivers and mortgagees is that, here, there is no dispute in this case as to the title of the mortgagee, the validity of the appointment of the receiver, the powers of either the receiver or the mortgagee to sell. That narrows the issues in a manner to which I will presently return.

The Properties

4. The lands the subject matter of the proceedings (collectively “the Properties”) are situate in the townland of Ballystrig in County Offaly and title to them is registered in Folios OY14446 and OY21001F (collectively “the Folios”). The lands are on the southern side of the regional road (R441) running eastwards out of Rhode.

5. The lands in Folio OY14446 measure approximately 1.13 acres and consist of a single storey dwelling with a long front garden to its north as far as the R441, and a short rear yard to its south. I will refer to these lands as “the Bungalow.”

6. The lands in Folio OY21001F measure some 32.98 acres, located to the south and east of the Bungalow. They consist for the most part of open fields; however, there are some farm buildings immediately south of the Bungalow, and a partially completed dwellinghouse is located on its eastern boundary, set back southwards by some distance from the R441. I will refer to these lands in their entirety as “the Farmlands”, and in this regard, it is important to note that the farm buildings and the partially completed house have not been clearly separated in any maps for the purpose of any of the valuation reports exhibited.

7. While the lands between the partially completed house and the public road are part of the Farmlands, the Court was advised that an access route has not been constructed. The partially completed house appears to have been constructed on foot of a grant of planning permission issued in 2007, the life of which was subsequently extended to 2017, whereupon it expired. The conditions on the grant of planning permission suggest that a new opening onto the public road is part of what was permitted in 2007.

8. It may be noted that the Bungalow is encumbered by a right of way registered as a burden on Folio OY14446. While it is clear that some of the Farmlands benefit from that right of way, I have not seen the deed granting the right of way, and the summary description on Part 3 of the Folio does not indicate (a) whether the right of way benefits all of the Farmlands or only a portion of them, or (b) whether any other lands also benefit from it.

9. The Bungalow has been occupied by a tenant (“the Bungalow Tenant”) for several years, who benefits from the Rental Accommodation Scheme (“RAS”) administered by Offaly County Council, such that rent is received from the Council rather than the Bungalow Tenant. No documentation relating to that tenancy was exhibited so the precise contractual architecture governing the tripartite relationship is unclear.

Background

10. The background to the case up to November 2024 is not in dispute.

11. On foot of a facility letter dated 7 November 2005, the Plaintiff and her husband Peter (or PJ) Stones (collectively “the Borrowers”) borrowed the sum of €270,000.00 from AIB Mortgage Bank, which loan was secured on mortgages granted to AIB Mortgage Bank and Allied Irish Banks plc, at least one of which was granted on 5 December 2005 (only the mortgage to Allied Irish Banks plc was exhibited). Both mortgages were registered as charges over the lands in each of the Folios with effect from 1 March 2007.

12. The Second-named Defendant (“Everyday”) became entitled to the interests of AIB Mortgage Bank and Allied Irish Banks plc in this loan and security on 17 January 2020 and was registered as owner of the registered charges in the Land Registry with effect from 7 July 2020.

13. Demand for payment of the total loan sum then due (€137,710.03) was made on each of the Borrowers on 28 May 2024.

14. The First-named Defendant (“the Receiver”) was appointed by separate Deeds of Appointment (one in respect of each Folio) dated 4 November 2024 and accepted on 7 November 2024.

Communications from November 2024 to May 2025

15. The evidence regarding communications between the parties and other relevant persons in the period between the appointment of the Receiver in November 2024 and the commencement of proceedings in May 2025 is incomplete in several respects. It is regrettable, to say the least, that communications between the Receiver and the Plaintiff were not fully disclosed in the Plaintiff’s affidavit grounding, as it did, an application ex parte for short service of the motion papers, and she may be grateful that the Defendants did not make an issue of this at the hearing.

16. It seems from references in subsequent correspondence of the parties that the Receiver wrote to each of the Borrowers on 7 November 2024, advising of his appointment, enclosing copies of the deeds appointing him and requesting certain information. However, no copy of this letter was exhibited.

17. On 13 November 2024, an “Occupancy Report” in relation to the Bungalow was provided to the Receiver by Messrs Blackwater Asset Management, which revealed (to him) that the Bungalow had been occupied by the Bungalow Tenant for the previous 14 years.

18. On 21 November 2024, the Receiver sent letters to each of the Borrowers, advising that he was engaged in taking custody of the Properties and requesting “any records or documentation regarding the Properties you may have in your possession or procurement as soon as possible.” A more specific request for information about any tenancies, historic tax treatment of the Properties and insurance was also made. Separate letters issued to “the Occupant” of each of the Bungalow and the Farmlands requesting details of “any purported lease or tenancy” thereof.

19. The Plaintiff averred in her second affidavit that she telephoned the Receiver after his appointment, that he requested a copy of a lease of the Bungalow dating back to 2010, that she offered instead a copy of a 2020 lease, and that this offer was declined. She further averred that the Receiver requested a copy of her agreement with Offaly County Council but that was not supplied because, as she averred, the Plaintiff believed that no such agreement existed. The conversation as related by the Plaintiff moved on to rental payments being made by Offaly County Council and it was averred that the Receiver advised that he had contacted the Council and “stopped” the rental payments. The Plaintiff also averred that she sent insurance and property tax documentation to the Receiver as requested. Neither of the Defendants contradicted or responded to the Plaintiff’s averments in relation to this telephone conversation. Nevertheless, it is unsatisfactory that the Plaintiff failed to identify when she had these communications with the Receiver (circumstantial evidence suggests that it may have been after 22 January 2025), and never exhibited the documentation sent or any other documentation relating to the tenancy of the Bungalow which she says the Receiver declined. The Plaintiff’s third affidavit suggests that her conversation was in fact with the Receiver’s office rather than the Receiver himself.

20. A second “Occupancy Report” was issued to the Receiver on 24 January 2025 by Blackwater Asset Management, which focused more on the Farmlands. Of note, this referred to livestock and to a mobile home on the Farmlands. It became apparent at some point (it is not clear when or how) that Peter Stones, the Plaintiff’s husband and co-debtor, was living in the mobile home.

21. The Receiver referred on affidavit to communications with Offaly County Council regarding the tenancy in the Bungalow and purported to exhibit in his first affidavit a copy of an emailed letter to the Council dated 22 January 2025 requesting the cessation of payments to the Plaintiff and the remittal of such payments to the Receiver. No such exhibit was in the papers supplied to the Court or the Plaintiff, which is unsatisfactory, and leaves open the obvious question whether the Receiver ever sought from the Council any of the lease documentation relating to the tenancy in question.

22. On 5 February 2025, Messrs PMC Real Estate issued a short valuation report to the Receiver in relation to each of the Properties. The Bungalow was noted as being tenanted with an unknown rent, and, having identified two comparators, an auction reserve was advised in the sums of €140,000 with vacant possession and €110,000 with the tenant in situ. The Farmlands were noted to be “Tenanted – Terms unknown” and, taking into consideration the different components of the Farmlands and one comparator for a partlycompleted house, an auction reserve of €250,000 was advised. The report does not make clear whether that reserve assumed vacant possession or not.

23. On 13 February 2025, the Receiver served a termination notice on the Bungalow Tenant, the intended purpose of which was to terminate the tenancy of the Bungalow with effect from 25 September 2025, on the stated ground that the landlord intended to sell the dwelling within 9 months of the termination of the tenancy (one of the grounds by which a Part 4 tenancy may be terminated in accordance with the provisions of the Residential Tenancies Act 2004: see paragraph 3 in the Table to section 34). This notice was accompanied by the required statutory declaration (under section 35(8) of the 2004 Act) confirming the deponent’s intention to sell and confirming the tenant’s entitlement to a new tenancy if the dwelling is not sold within 9 months from the termination date or the determination of any dispute relating to the validity of the notice. No copy of that declaration was exhibited by the Receiver.

24. It appears that, at some point in February 2025, the Properties were advertised for auction with Wilsons Auctions on 26 March 2025. The Bungalow was advertised as being occupied and “subject to a RAS tenancy at market rate (tbc)” and with an “AMV” of €110,000.00. The February advertisement for the Farmlands was not exhibited but there was no dispute between the parties that it was advertised with an “AMV” of €170,000.00.

25. In this context “AMV” stands for “advised minimum value” although the use of the expression in practice derives from legislation (the Property Services (Regulation) Act 2011) which uses the slightly different expression “advised market value.” Examination of the legislative provisions around the concept explains why AMV has come to be read as “advised minimum value”: most importantly, by section 56 of the 2011 Act, estimates of value in advertisements and related market communications may not be in a sum lower than the “advised market value,” which in effect equates the meaning of the expression with “advised minimum value.” The 2011 Act does not prohibit selling below the AMV: the relevant provisions are concerned with marketing and advertising.

26. Returning to the narrative, it appears that, at some point during or prior to February 2025, the Plaintiff engaged Messrs Raymond Potterton to provide a valuation of the Properties, which they provided on 28 February 2025 (“the Potterton Valuation”). The values advised were as follows:

(a) The Bungalow (on 1.1367 acres): €170,000;

(b) The Farmlands (including the farm buildings but excluding the partially completed house): €370,000;

(c) The partially completed house (to which an area of 1 acre was allocated): €80,000.

27. Unfortunately, this valuation included no comparators and was silent on whether the valuations assumed vacant possession or not. It is also unclear whether the one-acre area attributable to the partially completed house included the driveway to the public road, although that is probably unlikely to have a significant impact on the conclusions, since the route was along the boundary and would not have severed any of the remaining Farmlands.

28. On 10 March 2025, the Plaintiff telephoned Wilsons Auctions, the auctioneers conducting the auction and, according to her affidavit, was told: first, that the lands in sale could only be bought by a cash purchaser; second, that neither the house nor the lands could be viewed; third that they (Wilsons Auctions) had no legal documentation at that stage and did not know when they might have it; and fourth that there were a lot of difficulties with the property, including that there was a tenant in possession who was refusing to co-operate. The Plaintiff’s averments in this regard were never disputed.

29. On the same day, Messrs Cullen & Co, Solicitors, wrote to the Receiver, introducing themselves as solicitors for the Plaintiff, noting the proposed reserve prices for the upcoming auction, enclosing the Potterton Valuation, identifying (incorrectly as a matter of calculation) the total advised value of the Properties, referring to the Plaintiff’s conversation with the auctioneers, and asserting a breach of the Receiver’s obligations that would prompt an application for injunctive relief unless the Properties were withdrawn from auction. Specific issues of concern identified in this letter included the

decision to sell both properties when the sale of either one would (on the basis of the Potterton Valuation) satisfy the secured debt, and the failure to attempt to resolve the issues identified by the auctioneers (including getting vacant possession of the Bungalow or selling with the tenant in situ to the Council). A follow-up letter sent the same day correcting the error contained in the first letter as to the aggregate valuation of the Properties.

30. No response was sent to this letter by the Receiver.

31. For reasons that have not been explained in precise terms, but which seem to have related to the unreadiness of a legal pack for the purposes of the auction, the Properties were removed from the auction on 26 March 2025.

32. Although it is not clear when it was first made available to the Plaintiff, a valuation report relating to the Bungalow alone was prepared for Peter Stones by Mark Lawless Auctioneers on 27 March 2025. This indicated the market value to be €235,000. However, it assumed vacant possession and an unencumbered title, disregarding the reality of the Bungalow Tenant and the right of way running through the site. The comparators referenced were all three-bedroom dwellings whereas the Bungalow is a two-bedroom dwelling.

33. In a letter dated 5 April 2025, Wilsons Auctions gave written advice to the Receiver on the valuation of the Properties. This advised the following AMV figures:

(a) The Farmlands:

(i) with vacant possession: €250,000,

(ii) without vacant possession and with contentiousness: €170,000;

(b) The Bungalow:

(i) with vacant possession: €150,000,

(ii) without vacant possession and with contentiousness: €100,000.

34. Oddly, the advices refer to Wilsons Auctions’ next ensuing auctions as being on “12th & 26th of February”, which raises the question whether this was a re-issue of earlier advices which has not been disclosed in evidence. As this issue was not raised in the exchange of affidavits, which might have provoked the Receiver to provide a clarification, I am not going to draw adverse inferences from this peculiarity.

35. On 3 April 2025, the Plaintiff again contacted Wilsons Auctions, and the conversation she had with them on 10 March 2025 was repeated.

36. The Plaintiff’s grounding affidavit indicates that she ascertained from Wilsons Auctions on 4 April 2025 that the Properties were scheduled to be auctioned on 30 April 2025, inclusion in a proposed auction on 9 April 2025 having been abandoned. New advertisements were placed, indicating AMVs of €170,000 for the Farmlands and €110,000 for the Bungalow. The advertisement for the Bungalow noted that it was subject to a RAS tenancy while the advertisement for the Farmlands was silent about occupancy.

37. On 24 April 2025, the Plaintiff’s solicitors wrote to the Receiver again, referring to their unanswered letters of 10 March 2025 and reiterating in substance the points made in those letters, concluding with a threat of legal proceedings and an injunction application if the property was not withdrawn from the auction scheduled for 30 April 2025.

38. Again, no response was sent by the Receiver.

39. Again, the auction was postponed from 30 April 2025 and was readvertised for sale by auction on 14 May 2025.

40. On 6 May 2025, the Plaintiff’s solicitors wrote two letters, one to Everyday and one to the Receiver. These reiterated the substantive content of the letters of 10 March and 24 April and demanded undertakings by 8 May 2025 that the sales would not proceed as advertised, in default of which injunctive relief would be sought. It seems that these letters were sent by post and arrived (at least in the case of the Receiver) on 9 May 2025, after the deadline imposed in the letters had expired, and after the commencement of proceedings by Special Summons dated 7 May 2025 and the application made ex parte for short service on 8 May 2025.

41. On 7 May 2025, a letter was sent by the Receiver to the Plaintiff, specifically in connection with the Bungalow, referring to the Receiver’s correspondence of 7 November 2024 and requesting the information sought at that time so that it could be added to the listing “to present this rented property in the best possible condition to the open market.” No reference whatsoever is made to the unanswered correspondence from the Plaintiff’s solicitors in March or April 2025. By the time this was sent, or at any rate received, the proceedings were up and running and the exchanges thereafter were on affidavit, focusing as they did on the events from November 2024 to May 2025.

42. In a letter dated 3 June 2025 from the Defendants’ solicitors, the sum due by the Borrowers to Everyday was reported to be €142,929.52 in respect of the loan balances, as well as €38,681.80 in costs of the receivership including legal fees (the extent to which the latter figure is secured against the Properties is not an issue before me, but undoubtedly, some figure will be recoverable in addition to the loan balance).

43. It is not clear when precisely the Receiver ascertained what monthly rent was being paid for the Bungalow, but he could have been in no doubt from 22 May 2025 onwards, because on that date the sum of €4,600 was received from Offaly County Council for what was understood to cover four months’ rent from February 2025 onwards (indicating that €1,150 was payable per month).

The position of Peter Stones

44. Peter Stones is the Plaintiff’s estranged husband and co-debtor in relation to the secured loans. He is evidently aware of the proceedings, and in fact attended for part of the hearing of this application, accompanied by a solicitor. As noted above, it is not clear precisely how or when the Receiver became aware that he was in occupation of the mobile home on the Farmlands but the fact of his occupation appeared beyond question by the time of the hearing. I invited the Plaintiff’s representatives to inquire of Peter Stones whether he would co-operate in the sale of the Farmlands with vacant possession, and neither an indication of willingness to cooperate nor a denial that he was in occupation was forthcoming from whatever inquiries were made.

45. The Plaintiff’s grounding affidavit made no reference to Peter Stones’ occupation of the Farmlands or any part of them, yet there was clearly some level of communication between them (or their representatives) because a valuation report for the Bungalow exhibited by the Plaintiff in that grounding affidavit (advising an AMV of €235,000 with vacant possession) was identified as having been prepared for Peter Stones. At the hearing, I was told that this report was obtained in the context of family law proceedings.

If that is so, no explanation was given for why it was deployed outside of the family law proceedings without an order permitting that or without consent of Peter Stones. I therefore assume that Peter Stones consented to its use in these proceedings.

46. The Plaintiff, in her third affidavit, averred that she did not believe and had no knowledge that Peter Stones was living on the Farmlands. In the same affidavit she avers that she was the jointly registered farmer holding the herd numbers for the farm and that she has farmed these lands since 2005. These statements sit uncomfortably with one another, and while there may be a reconciliation of these facts (and I note that the Plaintiff was not cross-examined), the information provided by her is unsatisfactory on this. It cannot be forgotten that the Plaintiff’s obligations to Everyday under the mortgage and loan agreement are joint and several with Peter Stones. Against this background, she cannot stand by and complain about the Receiver’s lack of effort or diligence in obtaining better information or pursuing vacant possession of the Farmlands, unless and until she provides clear and complete information about the use and occupation of those lands whether by her, or Peter Stones or anybody else.

The duties of the Defendants

47. As already indicated, the duties imposed on a receiver or a mortgagee selling property secured by a mortgage are not in dispute.

48. The headnote to the decision in Holohan v Friends Provident and Century Life Office [1966] IR 1 has long been treated as an accurate summary of the principles articulated in the judgment of Ó Dálaigh CJ (nem diss):

“1. … a mortgagee with a power of sale has not power to dispose of the mortgagor’s property with the same freedom as if it were his own;

2. … the question to be investigated in such an action is whether or not the mortgagee acted as a reasonable man would have acted in selling the mortgagor’s property;

3. … the conduct of the defendant company [the mortgagee in that case] in refusing to consider an alternative mode of sale to that upon which they had decided and in refusing to examine the possibilities of obtaining a better purchase price by adopting such a method of sale was unreasonable conduct on their part.”

49. It is unnecessary to reiterate the careful elaborations of the test as appear in decisions such as Hennessy v Tyrell and Everyday Finance [2022] IEHC 109, O’Hagan v Harper [2024] IEHC 40, and Walsh v Everyday Finance [2025] IEHC 245. Although referenced in submissions, section 103 of the Land and Conveyancing Law Reform Act 2009, which requires mortgagees and receivers to “ensure as far as is reasonably practicable that the mortgaged property is sold at the best price reasonably obtainable,” does not apply, since the mortgage here pre-dates the commencement of that 2009 Act. Nevertheless, the common law obligation identified in Holohan and elsewhere applies to similar effect in the case of pre-2009 mortgages.

Interlocutory injunctions where sale at undervalue is the issue

50. On an application for interlocutory relief, of course, regard must be had to the longestablished test in Campus Oil v Minister for Industry and Energy (No. 2) [1983] IR 88 and the restatement of that test in the judgment of O’Donnell J (nem. diss.) in Merck Sharpe & Dohme v Clonmel Healthcare [2019] IESC 65, most usefully in the eight principles identified in paragraph 65 of that judgment.

51. The first of the principles summarised in Merck mandates that an interlocutory injunction cannot be granted in terms that exceed what might be granted by way of permanent injunction following trial. It was common case between the parties that a permanent injunction restraining outright a sale of the Properties is not, and could not, be sought on the Plenary Summons, since there is no challenge to the entitlement of the Defendants to sell. At most, a permanent injunction would preclude sale by means of a process that prevents or puts at serious risk the achievement of the best price reasonably obtainable. It follows that – in a case where the issue pertains only to a risk of a sale at undervalue – an interlocutory injunction should generally not prohibit sale outright pending trial. There may be circumstances in which such an outright prohibition on sale pending trial is appropriate, although it is difficult to contemplate what they might be in a case where the mischief arising is sale at an undervalue. It may be that – precluded from selling by a particular mode – the receiver decides to stand on principle and defend his preferred mode at trial, but that would be his own choice.

52. Of course, in cases where the reliefs pleaded in the substantive case extend to or include

– in addition or the alternative to a charge of selling at an undervalue – a challenge to the entitlement of the receiver or mortgagee to sell at all (as was the case in e.g. Nihill v Everyday Finance DAC and others [2022] IEHC 484), the appropriate relief, if granted, is more likely to be an injunction prohibiting sale simpliciter pending trial. However, that is not the case here.

Adequacy of damages

53. In any application for interlocutory relief, consideration of the adequacy of damages will form part of the analysis of the balance of convenience, and in cases involving an allegation of sale at undervalue, the Court must consider carefully whether a plaintiff has identified a risk of loss that cannot be met by an award of damages if upheld at trial. That is inherently difficult where the plaintiff’s case acknowledges that a sale will have to take place sooner or later. As Murray J said in Ryan v Dengrove [2021] IECA 38 (a passage applied in the context of a “sale at undervalue” case by Kennedy J in Harper and a mixed “sale at undervalue”/“defective appointment” case by Mulcahy J in Walsh) (at Paragraph 1):

“Generally in a purely commercial dispute of this kind where the parties' interests are exclusively financial, the law adopts the position that they are best left to their respective remedies in damages. The cases of this kind in which there is a particular factor tilting the balance in favour of the claimant such as would justify the making of orders restricting the creditor's freedom of action pursuant to agreed security instruments, tend to be the exception”

54. In a case where there is no challenge to the entitlement to sell, and there is an admitted debt that exceeds the highest estimates of value of the property, damages will almost certainly be an adequate remedy, because the interests of the parties are indeed “exclusively financial”, and the only question at issue is as to the credit to be applied to the mortgagee’s account, which is purely financial.

55. The present case, however, involves a special feature, in that the Properties are saleable in two, if not three, lots, and on the Plaintiff’s case, a properly conducted sale process may enable the debt to be cleared without a sale of the entirety. I will return to that feature presently.

56. In the context of the issue of adequacy of damages, I must refer to one passage from the judgment of Ó Dálaigh CJ in Holohan, which was relied upon by the Plaintiff. The specific passage is at page 26 of the report, and it goes as follows:

“No question of a remedy in damages between the parties before the Court can arise: the contract of sale is either properly made or it is not. If not, then it cannot be permitted to be completed, and the appropriate remedy is an injunction.”

57. Read in a vacuum, that passage would tend to suggest that damages can never be an adequate remedy in a “sale at undervalue” case, which – if it were so – would render such cases, and perhaps others, a previously unidentified exception to the general rules in Merck and elsewhere. This is not so, as the context in Holohan shows. Holohan was not an application for interlocutory relief but a trial, in which final relief was sought, namely the setting aside of an existing contract for the sale of the mortgaged property at (what was found to be) an undervalue. More importantly, the dictum quoted above was preceded by the following passage (at pages 25-26 of the report):

“I should add an epilogue. After the original argument concluded, the Court, in the course of considering its judgment found that a question arose which had not been argued on the appeal, viz, whether, in the absence of the purchaser, Francis Sweeney, as a party to these proceedings and in the light of the provisions of s 21, sub-s 2, of the Conveyancing Act, 1881, and of s 5, sub-s 1, of the Conveyancing Act, 1911 the remedy (if any) must lie in damages only. The plaintiff had not claimed damages. The Court therefore directed that the case be re-listed for argument. As a result of the further argument we have heard—and counsel on both sides found themselves in agreement in their submissions—I am satisfied, firstly, that s 21, sub-s 2, cannot have any application until a conveyance has been made. In this case no conveyance has been made. And, secondly, as to s 5, sub-s 1, of the Act of 1911, I am also satisfied that a purchaser who in fact has notice, actual or constructive, of an irregularity in the exercise of the power of sale before completion by conveyance could not get a good title.”

58. Put briefly, the mortgagee’s argument was that an injunction simply was not a remedy available to the mortgagor by virtue of the identified provisions of the Conveyancing Acts of 1881 and 1911 protecting purchasers from becoming embroiled in mortgagor/mortgagee disputes. The court’s answer was that those provisions did not apply to the case on the facts before them, because the conveyance had not been made. Thus, while the observations of Ó Dálaigh CJ certainly support the proposition that injunctive relief (whether at the interlocutory or final stage) is not ruled out by statute, they are not to be read as excluding or indeed diluting the normal rules around adequacy of damages.

The questions raised to be tried in this case

59. The Plaintiff characterises the sale process as “chaotic” and in this context points to the repeated postponements of auction dates (and the unreadiness of legal documentation that led to those postponements), the inconsistency between advertisements and what she (and, she assumes, other interested parties) were being told by the auctioneers, the silence in advertisements about whether the Farmlands were being sold with vacant possession, and the failure to acknowledge her co-operation on the telephone and her solicitors’ correspondence (including, in particular, the Potterton Valuation). In my view, while these factors add a certain colour to the picture, historical mismanagement of the process does not preclude the achievement of the best available price.

60. I am conscious of the ex tempore judgment of Allen J in Hennessy, which rightly serves to warn receivers and mortgagees against rushed and thoughtless sales processes; however, careful review of the judgment reveals that the sales process there exposed the objective of achieving the best price to specific and tangible risks. The deed appointing the receiver for the purpose of effecting a marketing and sales process was executed on

28 January 2022 and at some point, in the ensuing week, the property (a 75-acre agricultural holding) was advertised for sale at auction on 24 February 2022. The judgment identifies “the apparent suddenness of the decision to sell; the absence, as far as the evidence goes, of any previous demand for possession; and the absence of any meaningful marketing of the land” as tipping the balance in the case. As such, the plaintiff there was required to and did meet the requirement of showing a logical link between the conduct alleged and a real risk of sale at undervalue as compared with what was reasonably achievable.

61. Returning to the present case, the Plaintiff made somewhat more pointed criticisms of the Receiver on other matters:

(a) the advertised AMVs, which she contended were too low,

(b) the absence of any “for sale” billboards to generate interest in the sale,

(c) the failure to respond to her offer of documents relating to the tenancy of the Bungalow,

(d) the failure to delay sale of the Bungalow until after the termination notice had expired and vacant possession could be recovered (especially since the termination notice was not challenged before the Residential Tenancies Board within the 28- day time frame for doing so),

(e) the failure to attempt to negotiate a sale to the Council with the Bungalow Tenant in situ,

(f) the failure to clarify the position regarding vacant possession of the Farmlands,

(g) the apparent refusal to admit “non cash purchasers” to the process, and

(h) an assumption in the minds of the auctioneers that the partially completed house was not planning compliant.

62. The Plaintiff also made the broader argument that a sale of all of the Properties was unnecessary when the sale of one might suffice to discharge the debt.

63. I will address these in turn.

AMV too low

64. The difference between the advertised AMV and what the Plaintiff contended the value to be was €60,000 in the case of the Bungalow and €280,000 in the case of the Farmlands (including the partially completed house). However, there was no expert evidence before me, or authority from caselaw, to support a conclusion that a low AMV has a depressing effect on sale price in the context of an auction. It is not a conclusion that may be drawn from argument or intuition either. Indeed, the mischief apparent from a reading of section

56 of the 2011 Act seems to be that artificially low estimates were being used to the advantage of vendors (and the disadvantage of purchasers) as a means of generating interest. There may be cases where a sale by private treaty is envisaged, in which the opportunity for higher bids might be excluded by the early acceptance of a bid at or close to the AMV; however, in an auction, the bidding continues until the highest bid is reached. I am not satisfied, based on the evidence adduced, that the mere statement in an advertisement of an AMV that is below what might objectively be shown as the true market value impairs the fulfilment by the Defendants of their obligations.

65. If the auctioneers had advised a higher value and then advertised a lower figure, a breach of the 2011 Act might be shown, and in that regard, I note that the “auction reserve” for the Farmlands advised by PMC Real Estate on 5 February 2025 (€250,000) was higher than the advertised AMV that month (€170,000). I note that PMC Real Estate was not the selling agent, and the AMV advertised matches what Wilsons Auctions – who were the selling agent – later advised on the basis that vacant possession was not offered, so (in the absence of clarity as to when they first advised), one could not conclude that there was a breach of section 56 of the 2011 Act. Ultimately, I take the view that little turns on this, first, because it is historical, and matters had moved on since the February advertisements; secondly, because section 56 is for the protection of the market rather than vendors, which raises a question as to whether a mortgagor in the circumstances would have standing to make the point (although it may influence the exercise of discretion) and, thirdly, because it does not change the underlying conclusion noted above that there is no evidence to suggest that a low AMV depresses bidding.

66. In the circumstances, I am not satisfied that this issue constitutes or contributes to a fair question to be tried.

67. Although surplus to my conclusion, I must add that the failure of the Plaintiff to respond to an open offer by the Defendants made in October 2025 (after the proceedings commenced) to proceed with a sale on the basis of an agreed (presumably higher) AMV undermines her position on this issue.

No “for sale” signs

68. In a context where a substantial portion of the interested market is likely to be from the area in which the Properties are situate, it does seem surprising that no advertising signs were erected, in particular as regards the Farmlands. There may have been good reasons for this, but none were given on affidavit despite the Plaintiff’s complaints. On that basis, it does seem that the Receiver has failed in his duty, although the default is easily remedied.

Failure to respond to Plaintiff’s offer of documents relating to the Bungalow

69. I must take it as uncontested that the Plaintiff sent documents relating to property tax and insurance and offered to send a copy of the lease of the Bungalow dating to 2020 (though not a copy of any contract with the Offaly County Council). While it is surprising to say the least that the Plaintiff did not provide documents relating to that tenancy with her solicitors’ letters in March, April or May 2025 or as exhibits to her affidavits (given she was satisfied to send and exhibit other unsolicited documents), the Receiver has not denied or contested her averments on these issues, so his contention that she is responsible for the absence of these documents is not sustainable on the evidence. Accordingly, the failure of the Receiver to engage with these offers, in a context where the unavailability of such documents relating to occupancy will undoubtedly depress interest and, indirectly if not directly, the achievable price, must lead to the conclusion that the Receiver has failed to discharge his duty in managing the sale process. Again, this is easily rectified.

Failure to delay sale of the Bungalow and recover possession to achieve a higher price

70. The entitlement to terminate a Part 4 tenancy is closely controlled by the provisions of the 2004 Act and the Receiver in this case relied on paragraph 3 (as amended) in the Table to section 34 of that Act. This permits termination where:

“The landlord intends, within 9 months after the termination of the tenancy under this section, to enter into an enforceable agreement for the transfer to another, for full consideration, of the whole of his or her interest in the dwelling or the property containing the dwelling and the notice of termination is accompanied by a statutory declaration referred to in section 35.” (emphasis added)

71. The statutory declaration referenced in the above passage requires the deponent (the landlord, which encompasses the Receiver in the present circumstances) to declare on oath inter alia his intention to contract for such a sale: see section 35(8)(a) of the 2004 Act.

72. It will be obvious that the statutory declaration of the Receiver (which has not been adduced in evidence, but which can be assumed to be consistent with the notice of termination and the requirements of the 2004 Act) was inconsistent with any sale taking place before 25 September 2025. A sale before that period would in fact have invalidated the termination notice or at a minimum entitled the Bungalow Tenant to a new tenancy (which stands to reason because the whole premise of paragraph 3 of the Table to section

34 of the 2004 Act is that having vacant possession at the date of sale allows landlords to maximise the sale price).

73. While the swearing of a statutory declaration stating an intention that was manifestly inconsistent with the Receiver’s true intention is a serious matter, it seems reasonably clear that the Receiver failed to understand that the 9-month sale window contemplated by the termination notice and statutory declaration did not open until (at the earliest) the expiry of the termination notice, and his evidence in his second affidavit suggests that he served the notice in order to “start the clock” on the lengthy termination period, as a means of improving the product on offer by a small margin.

74. Whatever his intentions, the termination notice would in fact have achieved nothing if a sale had been contracted for prior to 25 September 2025, although for nine months after that date (and subject to what might emerge in any dispute with the Bungalow Tenant) it can still serve some purpose, but only if, before 25 June 2026, vacant possession is secured. The Receiver adduced no evidence of having acted upon the termination notice since September 2025, although that is perhaps understandable when he is having to defend these proceedings during that period.

75. It is clear from the authorities that a receiver or mortgagee is not obliged to secure vacant possession even if the alternative means a depressed price (see e.g. Hennessy at paragraph 23), and it is understandable that, for the sake of a €30,000 differential in the AMV, the Receiver may take the view that the game of seeking to remove the Bungalow Tenant, with all the delay, cost and uncertainty of outcome attendant upon it, is not worth the candle. However, although it has not been exhibited, it is necessarily implicit in the evidence given that the Receiver has sworn a statutory declaration that he intends to sell with vacant possession. A statutory declaration is a solemn document, and the Receiver must be held to his word. He is entitled to change his mind, but if he does so, certain consequences follow. First, in accordance with the requirements of the 2004 Act, he must offer the Bungalow Tenant a new tenancy (that is a matter between him and the Bungalow Tenant). Second, he must justify his change of mind (that is a matter between him and the Borrowers).

76. As matters stand, then, the Bungalow cannot be sold unless and until either:

(a) vacant possession is secured (and it must be secured before a sale and before 25 June 2026), or

(b) the Receiver changes his mind, offers a new tenancy to the Bungalow Tenant and justifies that change of mind (while there is no obligation to communicate either the fact of his change of mind or the reasons, common sense suggests that the Plaintiff at least should be told because the alternative might well mean explaining that change of mind on affidavit in the context of another court application).

77. As far as the Bungalow is concerned, a fair question has been raised on this issue, even if the complexion of that issue will have changed by the time of trial, assuming it is after

25 June 2026. Again, it does not necessitate a prohibition on sale now, but it certainly justified halting a sale that might otherwise have taken place on 14 May 2025.

Sale to the Council with the Bungalow Tenant in situ

78. While the Receiver, doing his very best, would explore all options, including that of selling to the Council, the evidence to suggest that this should have been done amounts to a comment in the Plaintiff’s solicitors’ letter of 10 March 2025 that it should have been considered. However, there is no evidence of any practice of local authorities acquiring properties in these contexts and if so, whether sales of properties “as seen” would have been realistic. The Plaintiff might have made inquiries of the Council, but she did not. In circumstances where the Council would have been as entitled as anyone else to bid at auction, I am not satisfied that the failure to make specific efforts to sell the Bungalow by private treaty to the Council comes within the scope of the Receiver’s obligations here.

Clarification of occupancy and possession of the Farmlands

79. I have set out earlier the unsatisfactory state of the evidence with regard to the occupancy of the Farmlands, and while the Receiver could perhaps have done more, or disclosed more about what he has done to ascertain the position with regard to occupancy, the Plaintiff was in a much better position to advise both the Receiver and the Court about the situation on the ground. I appreciate that the relationship between the Borrowers appears to have broken down, but there was clearly enough communication that Peter Stones’ expert’s valuation of the Bungalow was made available for use in these proceedings, and that Peter Stones could attend at the hearing. For the Plaintiff to aver on the one hand that she did not know if Peter Stones was in occupation and on the other that she has farmed the lands since 2005 is, to put it charitably, unhelpful to the process. The Plaintiff had multiple opportunities to assist the Receiver in achieving the very purpose of these proceedings – viz. getting the best price for the Properties – by advising him of the position on the ground and providing any relevant documents relating to the Farmlands; having declined to do so, she cannot be heard to complain about the Receiver’s conclusion based on his enquiries

80. The Receiver will struggle to effect a sale of the Farmlands at the best price achievable, but the Borrowers, who are jointly and severally liable on the loan obligations, and who, in their own different ways, have obstructed or at a minimum failed to provide information where the circumstances demanded it, cannot be heard to complain about that.

Refusal to admit “non cash purchasers” to the process

81. While the Plaintiff’s report of her conversations with Wilsons Auctions is uncontested, I do not read those reports as suggestive of an intention to exclude purchasers who required loan finance. In truth, the agents were stating the obvious, having regard to their understanding (whether it was right or wrong) that vacant possession was not held or readily achievable, that no conventional lender would advance credit facilities to a purchaser secured on a such a purchase.

Assumption by the auctioneers that the partially completed house was not planning compliant

82. The parties seemed to express contrasting positions on the planning status of the partially completed house, when the obvious reality lies somewhere between those positions. Planning permission was granted for the construction of a dwellinghouse in 2007 and – despite an extension of the life of that permission to 2017 – it was only partially completed. The planning status of the partially completed house is therefore dictated by section 40 of the Planning and Development Act 2000: the grant of planning permission ceased to have effect as regards “so much of the development as [was] not completed by [the expiration of the permission].”

83. As such, while the partially completed house cannot be completed without a further grant of planning permission, it is not an unauthorised structure liable to enforcement proceedings.

84. Whatever the auctioneers may have thought or conveyed to the Plaintiff (or other interested bidders) about the planning status of the partially completed house, their understanding or statements are not to my mind a factor that would depress the price that might be achieved at auction. The fact that a partially completed house is on the Farmlands is plain to see, and normal pre-auction searches by any responsible purchaser (especially in the context of a “receiver sale” when a certain level of paranoia is obligatory) will reveal its true planning status. Any bidder will trust their own advisors on questions of planning status (and will be required to do so in special conditions).

Simultaneous vs sequential sales of the Properties

85. No decided authority was opened to the Court on the question whether, if the sale of one of two or more mortgaged properties is capable of, or likely to, or bound to, release sufficient funds to discharge the secured debt, it was appropriate to enjoin the holding of concurrent sales. In Walsh, Mulcahy J granted an injunction restraining sale of certain secured lands while refusing relief in respect of the remainder, but that was for reasons other than merely the expectation or hope that a sale of part would discharge the debt.

86. There is certainly an attractiveness to the proposition that, where a sale of one plot of secured property will clearly suffice, sales of the others should not be pursued. That chimes with Ó Dálaigh CJ’s reference in Holohan to the dictum of Chitty J on the duty of the mortgagee in Farrar v Farrars Ltd (1888) 40 Ch D 395 (at p 398):

“He is bound to sell fairly, and to take reasonable steps to obtain a proper price; but he may proceed to a forced sale for the purpose of paying the mortgage debt.” (emphasis added)

87. A sale of land that manifestly did not have to be sold to discharge the mortgage debt is difficult to reconcile with that duty. Of course, everything depends on the facts. If the mortgaged property is one contiguous plot, it would require very convincing, if not uncontradicted evidence, to persuade a court to draw lines on a map to create distinct plots for sequential sale. Perhaps more importantly, in the absence of, again, convincing evidence that a sale of one (separate or distinct) plot was likely to yield sufficient proceeds to discharge the secured debt, intervention by the court will not be appropriate. There may be other factors that weigh on the question also, but the analysis must always be grounded in the principles identified in Holohan: in particular, it must be shown that simultaneous sales would be an unreasonable mode of sale, a test that affords a considerable margin of appreciation to the mortgagee or receiver.

88. No authority was opened to me on the question whether a court will intervene to require sequential sales in these circumstances, but for the purpose of this application I am prepared to accept that a fair question can be raised, if the facts support it.

89. In the present case, there could be no question of directing the sale of the Bungalow ahead of the Farmlands. On the basis of the AMVs advised, the proceeds will almost certainly be less than the outstanding debt and the Receiver’s costs (including the costs of sale). Although the valuation by Mark Lawless Auctioneers suggests a higher market value, the assumptions and comparators on which it is based, and the extent to which it diverges from the other valuations, mean that it is far from convincing evidence that the proceeds would discharge the debt. In addition, a sale of the Bungalow raises the dilemma – unless an arrangement is made with the Bungalow Tenant – of seeking possession (and incurring yet more cost, if not also delay, in so doing) or offering her a new tenancy.

90. The case for prioritising the sale of the Farmlands has greater comparative merit. A sale at even a little above the lower end of the range of valuations provided (i.e. from €170,000 to €450,000) creates a reasonable prospect of discharging the debt and the Receiver’s expenses from a sale of the Farmlands without needing a second sale. Indeed, if the Borrowers co-operate in clarifying the position with regard to use of the Farmlands and provide vacant possession, then the lower AMV advised by Wilsons Auctions is likely to be increased. In the circumstances, I consider that, by a small margin, a fair question has been raised that the sale of the Bungalow should be postponed until the estimated proceeds of sale of the Farmlands can be calculated following auction. This should not be taken as suggesting that it is sufficient to show that the proceeds will “just about” cover the secured debt and expenses; indeed, if the only evidence of value was that provided by Wilsons Auctions (i.e. AMV €170,000), that would certainly amount to less than convincing evidence that the proceeds of the sale of the Farmlands would suffice. However, I am conscious of the advices of PMC Real Estate for the Receiver (€250,000) and the Potterton Valuation (€450,000 including the partially completed house and €370,000 without it).

Balance of convenience

91. Inasmuch as a fair question to be tried has been shown under certain headings, including sequential sales, the next issue is whether the balance of convenience favours an injunction, whether for sequential sales or at all. There are two questions: first, whether to postpone the sale of the Bungalow, and second, whether to impose conditions on the mode of sale of the Farmlands, having regard to the issues of complaint addressed earlier.

92. Clearly, the Farmlands must be sold, so whether the Plaintiff has a “special connection” of the type contemplated in certain of the authorities is immaterial. There is no “special connection” associated with the Bungalow: the starting position then is that the Plaintiff’s remedy in damages will be adequate if there is a sale at undervalue. However, against this, the frequency with which auctions are held by Wilsons Auctions suggests that the inconvenience to the Defendants of postponing the sale of the Bungalow until after the sale of the Farmlands may be very slight indeed (after all, it appears that three postponements occurred in 2025 without any intervention of the Plaintiff). The auctions are at most a month or two apart, during which the estimated proceeds of sale are readily calculable.

93. I am conscious that postponing the sale of the Bungalow would leave the Receiver with the dilemma of whether to seek vacant possession of it. However, that dilemma was always there as soon as the termination notice was served, and it would be regrettable from all perspectives if the Bungalow Tenant were to be put out, and the Receiver to sustain the costs associated with securing possession, if it ultimately proved unnecessary to sell the Bungalow.

94. In the circumstances, and in particular having regard to the minimal adverse effects it will have on the position of the Defendants, I am satisfied that the balance of convenience favours a postponement of the sale of the Bungalow until it is ascertained whether such a sale is necessary to discharge the secured debt and the costs and expenses of the receivership (including the costs and expenses of sale).

95. As to whether it is appropriate to direct in any respect the mode of sale of the Farmlands (or, if it must be sold, the Bungalow), I consider that it is not. Neither the Receiver nor Everyday has set their face against engaging with any of the issues identified above as giving rise to a fair question to be tried: the lack of billboard advertising, the refusal to accept documentation from the Plaintiff about the Bungalow tenancy, and the proposal to sell inconsistently with the termination notice served on the Bungalow Tenant. At worst, the Receiver was guilty of ignoring the Plaintiff’s solicitor’s correspondence in the March to May 2025 period, although after the proceedings issued, a more cooperative approach was eventually taken. Inasmuch as the Plaintiff’s concerns were aired in some detail at the hearing, there is much for the Defendants to ponder, and if they fail to do so, and proceed to sell in a manner that demonstrably fails to achieve the best price reasonably achievable, these issues may re-emerge at trial. To give directions as to the mode of sale in the present context would, I think, involve the Court in a process of supervision, if not micromanagement, that it is ill-equipped to perform, and I consider that the balance of convenience does not favour that level of intervention.

96. I acknowledge that poor performance of the sale of the Farmlands might mean the difference between having to sell the Bungalow or not, but since the biggest factor in enabling the achievement of true market value for the Farmlands is within the gift of the Borrowers (i.e. vacant possession and information about usage), there would be a certain perversity in imposing conditions on the Defendants if the Borrowers’ own conduct is the more likely reason why a sale of the Bungalow might become necessary.

Decision

97. Having regard to the foregoing, and subject to two provisos, I will make an order restraining the Defendants from selling the Bungalow until a date, following sale of the Farmlands, the net proceeds of that sale are calculated sufficiently to determine whether it is necessary to sell the Bungalow or not, and communicated to the Borrowers. That should be possible within a matter of days following the date of auction or contract, as the Receiver will know (roughly) the price, the secured debt, and the receiver’s costs and expenses (including the management costs and the professional fees necessary to the sale process but not including the costs incurred in these proceedings). If the net proceeds are insufficient, then (subject again to the provisos below) the Defendants will be at liberty to sell the Bungalow.

98. The provisos mentioned above, which I will consider when hearing the parties as to the form of the order to be made, are as follows:

(a) First, if the parties agree, considering the findings above, a different sequencing of sales, I will accommodate that in making the order.

(b) Secondly, noting that, even if the proceeds are insufficient to fully discharge the secured debt, there is every likelihood that the shortfall will be small enough that the Borrowers might be able to discharge it to avoid a sale of the Bungalow, I will consider giving directions to allow the Borrowers an opportunity to discharge any shortfall by means of a cash payment to avoid a second sale (without prejudice to the pursuit of a claim at trial that the Defendants sold unreasonably and at an undervalue).