Court vacates lis pendens as it does not meet statutory requirements for claims against receivers.

COMMERCIAL COURT

[2026] IEHC 29

RECORD NUMBER 2025/4332P

THE HIGH COURT

BETWEEN

GOLDSTEIN PROPERTY ICAV

PLAINTIFF

AND

RELM LOAN OPPORTUNITIES 2 DAC, RELM LOAN OPPORTUNITIES

3 DAC, RELM LOAN OPPORTUNITIES 4 DAC, KEN FENNELL AND

BRENDAN O’REILLY

DEFENDANTS

JUDGMENT of Mr. Justice Michael Twomey delivered on 21st day of January, 2026 SUMMARY

1. This case raises an important issue of general application. It concerns the power of a borrower to register a lis pendens1 and thereby effectively injunct a receiver from selling secured land by the simple act of issuing proceedings. Crucially, what is, in A lis pendens is a notice in a register maintained in the Central Office of the High Court that litigation is pending regarding land. effect, an injunction is obtained without any court considering whether those proceedings have any merit.

2. While the rationale for a lis pendens is that it puts possible purchasers of land on notice that there is litigation concerning same, in practical terms, the real power of a lis pendens is that it allows a plaintiff, in the words of Costello J., to effectively prevent the sale of land for several years.2 In this context, the courts have observed that being able to halt the sale of land by registering a lis pendens can be used as a ‘tactic’ by a plaintiff.3

3. In this case, this is exactly the claim being made by the first three defendants (“RELM”) about the plaintiff’s issue of the proceedings in this case, and the subsequent registration by the plaintiff (“Goldstein”) of the lis pendens.

4. The proceedings, which gave rise to the lis pendens in this case, were issued by Goldstein alleging that receivers were invalidly appointed to land which was security for sums (the “Loans”) which had been lent by RELM to Goldstein.4

5. However, RELM says that Goldstein’s claims, that the fourth and fifth defendants (the “Receivers”) were invalidly appointed, are not even arguable. Despite this, RELM points out that Goldstein registered a lis pendens against the land securing the Loans. Therefore RELM argues that the registration of this lis pendens effectively prevents the sale of the Land by the Receivers for however many years it will take for this litigation, which it says is baseless, to be resolved.

Barry v Buckley [1981] 1 I.R. 306, at pg. 307. O’Loughlin v Moran [2021] IEHC 852, at para 7. As noted below, the borrower is a sub-fund of Goldstein, but Goldstein has acted on behalf of this sub-fund. For ease of reference, in this judgment, references to Goldstein are deemed to include Goldstein Property Fund II and Goldstein Property ICAV

6. RELM also claims that the registration of the lis pendens is being used by Goldstein as leverage to try to force RELM to accept Goldstein’s terms to re-finance the Loans, which offer was made immediately prior to the registration of the lis pendens.

7. The key legal issue in the case is RELM’s claim that on its interpretation of s. 121(2)(a) of the Land and Conveyancing Law Reform Act, 2009 (the “2009 Act”), Goldstein is not entitled to register a lis pendens in this case. This section provides that a lis pendens can only be registered in relation to litigation, if that litigation is one in which ‘a claim is made to an estate or interest in land’ (for short, an ‘interest in land’).

8. In this regard, it is not in dispute between the parties that, although a receiver is the person who is entitled to transfer ownership of the land to a third party by executing the relevant transfer, she does not own land which is subject to receivership. The net issue in this case therefore is whether litigation alleging that a receiver has been invalidly appointed constitutes litigation in which ‘a claim is made to an interest in land’, since a receiver does not own the land in question?

9. To put it another way, does a challenge to the authority of a person who does not own land, but is authorised to transfer land, amount to litigation in which there is a claim to an interest in land (so as to give rise to an entitlement to register a lis pendens)?

10. Goldstein says that the answer is yes, as this Court is bound by the High Court decision (per Butler J.) in Fay v Promontoria (Oyster) DAC [2022] IEHC 483. In line with the rule derived from In Re Worldport Ireland Limited [in liquidation] [2005] IEHC 189 (i.e. that one High Court judge follows the decision of another High Court judge), Goldstein claims that this Court cannot depart from the decision in Fay (which permitted the registration of a lis pendens in relation to litigation against a receiver).

11. However, RELM says that the Worldport doctrine has no application to this case. This is because RELM says that there are in fact two competing interpretations in the High Court of s.121(2)(a) of the 2009 Act. RELM says that the Fay decision represents a broad interpretation which was taken by the High Court of s.121(2)(a). However, it states that a different, and stricter, interpretation of s.121(2)(a) was taken by Clarke J. (as he then was) in the High Court case of Moorview Developments Ltd v First Active PLC [2011] 1 IR 117. In that case, Clarke J. vacated a lis pendens which had been registered in relation to litigation against a receiver.

12. As noted hereunder, it seems to this Court that an analysis of the cases of Fay and Moorview reveals that in the former case a broad interpretation of s 121(2)(a) was taken, while in the latter case a narrow interpretation of s.121(2)(a) was taken. For this reason, this Court agrees with RELM that it is a matter for an appeal court to determine which of these two different interpretations is correct. In the meantime, this Court shares the view of counsel for RELM that it is open to this Court to bring its own assessment to bear on which of these two High Court interpretations to take.

13. In taking this approach, and for the reasons set out below, this Court prefers the narrow interpretation of s.121(2)(a) adopted in Moorview. It concludes, in line with Moorview, that, based on first principles, a receiver’s right to transfer land is a contractual right and does not amount to an ‘interest in land’. On this basis, a challenge to a receiver’s appointment is not litigation in which a claim is made to an interest in land. Accordingly, this Court concludes that Goldstein is not entitled to register a lis pendens in this instance.

14. It is to be noted that whichever interpretation of s.121(2)(a) is found to be correct by an appeal court, it is of considerable practical significance. For example, on the narrow interpretation in Moorview, it seems to this Court that a borrower, and so it seems whether a corporate borrower or an individual borrower, cannot effectively prevent the sale of the secured lands ‘perhaps extending over several years’ (per Costello J.)

by the simple act of issuing proceedings (irrespective of their merits) challenging the appointment of a receiver. Instead, as noted by Clarke J. in Moorview, if a borrower, like Goldstein, wishes to stop the sale of secured land, it is not achieved automatically by the simple issuing of proceedings and registration of a lis pendens, but instead the borrower must convince a court that its claims, regarding the receiver, have sufficient merit to warrant an injunction preventing the sale of land.

BACKGROUND

15. RELM lent money to Goldstein Property Fund II and by 4 November 2024, RELM was collectively owed over €150 million in respect of this Loan. The Loan was secured over a portfolio of 47 commercial real estate properties (the “Properties”) owned by the Borrower in the State. Goldstein Property Fund II is a sub-fund of Goldstein which is an Irish Collective Asset-Management Vehicle.

16. The relationship between Goldstein and RELM broke down in 2024, with the loan facilities expiring on 30 September 2024 (“Final Repayment Date”). This repayment date had been agreed pursuant to extension letters between Goldstein and RELM dated

9 May 2024 (“Extension Letter”). This Extension Letter also provided for:

(i) Goldstein to increase the rent on a property, which was secured in favour of RELM, known as ‘the Gateway’ in East Wall, Dublin;

(ii) for Goldstein to provide a de-leveraging strategy which was satisfactory to RELM, and which strategy was to provide for the re-financing of at least 50% of the Loans; and

(iii) the provision of additional security by Goldstein to RELM in the form of proceeds from the sale of certain lands in Kilpedder, Co. Wicklow.

17. Despite the terms of the Extension Letter, the loans were not repaid on 30 September 2024 and as result RELM appointed the Receivers to the Properties by separate Deeds of Appointment on 13 November 2024.

The substantive dispute between the parties

18. The substantive dispute which is the subject of this litigation arises because Goldstein claims that, between May 2021 and 9 May 2024, there were representations made on behalf of RELM, as well as conduct on the part of RELM, to the effect that an extension would be granted by RELM to the Final Repayment Date. Goldstein claims that this extension was for a period of two years, with an option for a further one year.

19. On the basis that there was such an agreement, Goldstein’s case is that it was not therefore required to repay the Loans in full on 30 September 2024 and so it was not in breach of the terms of the Loans and so there was no entitlement on the part of RELM to appoint the Receivers.

20. It is relevant to note that, although the Receivers were appointed on 13 November 2024, it was not until 1 August 2025 that Goldstein instituted these proceedings in which it claimed that the Receivers were improperly appointed.

21. Goldstein’s substantive claim is essentially that RELM is estopped from demanding repayment and is estopped from appointing the Receivers because of alleged representations made by RELM’s alleged agent, Mr. Paul Dowling (“Mr. Dowling”), who is a director of RELM Loan Services (“RLS”), a service provider company to RELM. For its part, RELM disputes that Mr. Paul Dowling had authority, actual or ostensible, to bind it.

The application before this Court

22. The current application was brought by RELM on 27 August 2025. It was heard over two days on the 16 and 17 December 2025. In it, RELM seeks to strike out the entire proceedings and to vacate the lis pendens registered by Goldstein against the Properties. RELM claims that:

(i) the proceedings are bound to fail and so should be struck out;

(ii) that the proceedings are not validly registerable as a lis pendens and so the lis pendens should be vacated;

(iii) in the alternative, that the proceedings are not being prosecuted bona fide and so the lis pendens should be vacated on this basis. This judgment will first deal with the strike-out application and then the vacation of the lis pendens.

A. THE STRIKE-OUT APPLICATION

23. There is little dispute between the parties regarding the law applicable to strike-out application such as this one. The bar for a strike out application under Order 19 rule

28 of the Rules of the Superior Courts is very high. As is clear from the Supreme Court case of Keohane v Hynes [2014] IESC 66, the purpose of the jurisdiction is to prevent an abuse of process. Accordingly, before proceedings will be struck out, it must be ‘clear the proceedings are bound to fail rather than where the plaintiff’s case is very weak’ (at para. 6.6).

24. It is also clear from Keohane at para. 6.7 that that if there is evidence ‘on affidavit on behalf of a plaintiff which, if accepted, at trial, might arguably lead to the plaintiff succeeding’, then the application to dismiss must fail. Thus, this Court must take the plaintiff’s case at its height. Accordingly, if there is a conflict between the plaintiff’s version of events and the defendant’s version, this Court is not entitled to resolve that conflict in favour of defendant. In a similar vein, in Barry v Buckley [1981] 1 I.R. 306 at pg. 308, Costello J stated that for a strike-out application to succeed, the court must be ‘satisfied the plaintiff’s case must fail’, and that to permit the plaintiff’s litigation to proceed would ‘be to permit an abuse of the Court’s processes.’ Is Goldstein’s case so weak it is bound to fail?

25. Perhaps the most compelling reason for claiming that Goldstein’s case is weak is its delay in making the claim that RELM had agreed to extend (for at least two years) the Final Repayment Date beyond 30 September 2024.

26. If Goldstein is correct and there was such an agreement, it would mean that there was no basis whatsoever for RELM appointing the Receivers on 13 November 2024, after the date of 30 September 2024 had passed without the Borrowers paying back the Loan in full. However, despite this, for a period of 8 months after the appointment of the Receivers, Goldstein acknowledged their appointment and even instituted proceedings against RELM claiming that certain assets should be excluded from the receivership.

27. It is certainly arguable that if Goldstein genuinely believed all along that it had an agreement with RELM that the Loans would be extended beyond 30 September 2024, then the minute the Receivers were appointed in breach of this agreement, Goldstein would have contacted RELM and said that there was absolutely no basis for such an appointment (as the loans did not in fact have to be paid back by 30 September 2024). Instead, as claimed by RELM, Goldstein treated the appointment of the Receivers as valid for a period of 8 months by, amongst other things, instituting proceedings against RELM in order to seek to exclude certain assets from the receivership.

28. It was not until 1 August 2025, some 8 months after the appointment of the Receivers (back on 13 November 2024), that Goldstein for the first time raised the alleged agreement regarding the 2 + 1 year extension. It did this by letter dated 1 August 2025 to McCann FitzGerald, acting for RELM, in which it stated:

'between 2 September 2024 and 8 November 2024, RELM repeatedly

represented that the Loan Facilities were to be refinanced and extended and [Goldstein] relied on these representations and on the conduct of RELM (and Avenue Capital) to its detriment by continuing to engage with RELM upon the faith of these assurances that the Loan Facilities would be refinanced and extended.’

29. The excuse provided by Goldstein for the delay in raising the alleged representation/agreement of an extension was that there had been a burglary in its offices and that it wanted to progress a non-litigation solution with RELM. However, this is not a very compelling reason when one considers that during this time, Goldstein had no issue litigating with RELM regarding other aspects of the receivership (the “Excluded Assets Proceedings”). Those proceedings relate to the extent of RELM’s recourse to Goldstein’s assets under the relevant debentures, with Goldstein seeking declaratory relief regarding certain of those assets (the ‘Excluded Assets’). A Plenary Summons in relation to those proceedings was served by Goldstein on 9 July 2025.

30. RELM’s second claim that Goldstein’s claim is very weak, and should be struck out, is also a significant point. It is that, even if Goldstein were to be successful in arguing that it did not breach the terms of the Loan (by failing to repay the Loan in full on 30 September 2024), Goldstein still failed to meet the entire interest payment due for August and September in 2024 on the Loans and failed to meet any of the interest payments due in October 2024. In this regard, RELM points out that, as is clear from the letters of demand dated 11 November 2024, it exercised its right to appoint the Receivers, not just because of the failure of Goldstein to meet the 30 September 2024 repayment date, but also because of Goldstein’s failure to pay the interest due on the Loans. On this basis, RELM claims that the Receivers were validly appointed, even if there was an agreement to extend the Final Repayment Date beyond 30 September 2024. This is because RELM was entitled to appoint the Receivers because of a failure to meet the interest payments on the Loan, which it says is a stand-alone ground for their appointment.

31. In response, Goldstein appears to say that the agreement to extend the Final Repayment Date was, in some way, tied-in with the repayment of the monthly interest by Goldstein. In support of this claim, it references the fact that Goldstein indicated by letter date 24 October 20245 to RELM that it was ready, willing and able to pay the interest if RELM complied with its alleged agreement to extend the Final Repayment Date. Thus, Goldstein appears to be saying that because it offered to pay the interest if RELM performed what Goldstein said was its agreement to extend the Final Repayment Date, the failure by Goldstein to pay interest was not an event of default entitling RELM to appoint a receiver. Again, like with its response to the delay point, this does not appear, based on the evidence before this Court, to be a particularly strong defence for Goldstein to the claim that it breached the terms of the Loan requiring it to pay interest (and so entitling RELM to appoint the Receivers).

32. In reaching these tentative conclusions regarding Goldstein’s case, it is important to note that this Court is required to assess the strength of Goldstein’s case, even though Book 1, Statement of Claim, para. 63(e) states the fund wrote on 2 October 2024 in this regard, however, this seems to be a typo, with para. 54(c) of the Statement of Claim and para. 87 of Eithne Friel’s affidavit at para. 87 giving the 24 October date. one is at an early stage of the proceedings. This is because RELM’s application is based on Goldstein’s case being so weak that it would amount to an abuse of process for it to be permitted to continue.

33. For these two reasons in particular, this Court agrees with RELM that, based on the evidence before it at this stage in the proceedings, Goldstein’s case is very weak. Indeed, if this Court were required to decide this case summarily, it would decide the case in favour of RELM.

34. However, as observed by Clarke J. in Keohane at para. 6.5 ‘an application to dismiss as being bound to fail is not a means for inviting the court to resolve issues on a summary basis’. Rather, a plaintiff is entitled to a plenary hearing, unless her case is, not just weak or indeed very weak, but if it is so weak that it is clearly bound to fail, such that allowing it to continue would be an abuse of process. Allowing Goldstein’s case to continue would not be permitting an abuse of process

35. In this regard, this Court is not convinced that Goldstein’s case is so weak such that allowing it to continue would be permitting an abuse of process. Similarly, this Court does not think that it should deprive Goldstein of what Clarke J. in Moylist, at pg. 289, described as the ‘default position in relation to any proceedings…that they should go to trial’.

36. This is because firstly, while it may seem unlikely at this juncture, it is possible that Goldstein’s case will improve in relation to the foregoing issues highlighted by RELM, after oral evidence, or after other documentary evidence comes to light as a result of discovery and other pre-trial procedures.

37. Secondly, this Court must, for the purposes of this application, take Goldstein’s claims and affidavit evidence at its height. In this regard, in its Statement of Claim (at para 41[e]), Goldstein claims that on 27 June 2023, Goldstein met with RELM (and with investors who provided funds to RELM, i.e. Avenue Capital) and that at that meeting Goldstein agreed to sell a plot of lands in Kilpedder Co. Wicklow (which was not secured in favour of RELM) and to give an undertaking to provide the net proceeds of that sale of circa €18.4m to RELM, as additional security. It is specifically claimed by Goldstein that, in return for this additional security, RELM and Avenue Capital agreed to provide an extension of the term of the Loans for two years, with an option to extend for an additional year. Goldstein supports this claim with sworn evidence dated 24 September 2025 from Mr. Mel Sutcliffe (“Mr. Sutcliffe”). Mr. Sutcliffe is the investment adviser for Goldstein and he states that RELM acknowledged Goldstein’s agreement to give additional security and: ‘in return, RELM (plainly with Avenue Capital support) agreed to give the requested extension that I had requested. I relied on this and took steps to fulfil my side of the promise.’ (emphasis added)

38. If one takes Goldstein’s evidence at its height, which this Court must do, this means that, on Goldstein’s case, RELM agreed to provide, what is known as a 2 + 1 year extension. While Mr. Dowling denies the existence of an agreement to extend the loan for the 2 +1 years, he does not, in his sworn evidence of 20 October 2025, specifically deal with the alleged contents of this meeting of 27 June. Indeed, even if there were a denial of the specifics of Mr Sutcliffe’s claim regarding the contents of the meeting, this Court could not resolve, at this juncture, such a conflict of sworn evidence between RELM and Goldstein, in favour of RELM.

39. Similarly, at para 41(f) of the Statement of Claim, it is claimed by Goldstein, that at a meeting on 18 October 2023, Goldstein met with RELM and both parties ‘agreed that the facilities would be extended’ by two years, with an option to extend for an additional year. In support of this claim, the wording of Mr Sutcliffe’s affidavit of 24 September 2025 is not quite as definitive as the wording in the Statement of Claim. This is because Mr. Sutcliffe avers that ‘the meeting concluded with a discussion amount [sic] the terms of the extended facility’. However, taking Goldstein’s case at its height, Mr. Sutcliffe’s averment is capable of being interpreted in a manner consistent with that claim in para 41(f). Again, while Mr. Dowling denies the existence of an agreement to extend the loan for the 2 + 1 years, he does not, in his sworn evidence on 20 October 2025, specifically deal with the alleged contents of this meeting on 18 October 2023. Indeed, even if he did specifically deny the contents of this meeting, any conflict between Mr. Dowling and Mr. Sutcliffe, in this regard, cannot be resolved, at this juncture, in favour of RELM.

40. In a similar vein, at para 41(k) of the Statement of Claim, it is alleged that Mr. Dowling, on behalf of RELM, stated that in addition to the 6-month extension to 30 September 2024 (the “First Six Month Extension”) to be provided under the Extension Letter, a further extension of 6 months (the “Second Six Month Extension”) would be provided. Goldstein seeks to support this claim by reference to an email of 6 April 2024 from Mr. Dowling to Ms. Eithne Friel (“Ms. Friel”), who is an independent accountant who acted for Goldstein. Attached to Mr. Dowling’s email is a document outlining the proposed terms of the Extension Letter. In that document, Mr. Dowling inserted the following wording: ‘Please note a further 6 months extension will be granted subject to attainment of the above points - please note no extension fee for the following 6 months will be charged.’

41. On the one hand, and in Goldstein’s favour, this document does state that ‘an extension will be granted’. However, on the other hand, it is stated to be subject to the ‘attainment’ of the earlier points stated in the document (which were the provision of the proceeds of the Kilpedder lands as security, rent being changed to €6m in a property known as the Gateway, a debt re-finance strategy and a de-leveraging strategy satisfactory to RELM). For its part, Goldstein claims in these proceedings, that these earlier points were all attained. However, it is to be noted that in her email of 8 May 2024 to Goldstein’s solicitor, Ms. Friel references this alleged agreement to provide an additional 6 month extension and she specifically states that ‘[n]one of the above is contractual but I am recording the discussions for my file while the details are fresh in my head’. While this acknowledgement by Ms. Friel weakens Goldstein’s claim that there was an agreement to extend for a further 6 months, it would be a stretch for this Court to conclude that permitting this part of Goldstein’s claim would amount to an abuse of process Other factors relevant to whether continuing with litigation is an abuse of process

42. There are a number of other factors which are in Goldstein’s favour, in considering whether Goldstein would be guilty of an abuse of process if it were to be permitted to pursue this litigation.

43. The first is the fact that Goldstein alleges that it acted to its detriment (by pursuing proposals to deleverage the Loan) in reliance on the alleged agreement to provide a 2 + 1 year extension. In this regard, it is clear that Goldstein acted to its detriment in the sense of pursuing proposals to deleverage the Loan, but it is not clear, at this stage, whether this was done in light of its pre-existing commitment under the Extension Letter (which it had to give in order to obtain the First Six Month Extension), or because of the alleged representation that there would be a Second Six Month Extension or because of the alleged representation/agreement of a 2 + 1 year extension. While not determinative, the fact that Goldstein acted to its detriment, for the benefit of RELM, is nonetheless a factor in Goldstein’s favour, in considering whether allowing these proceedings to continue would be facilitating an abuse of process.

44. The second factor in Goldstein’s favour is the fact that uncontroverted submissions were made by Goldstein that the proposal submitted by Ms. Friel, on behalf of Goldstein, to RELM in August 2024 went beyond the requirements of the Extension Letter. Under Ms. Friel’s proposal the outstanding indebtedness of €150m was to be reduced using a €50m facility provided to Goldstein by Earlsfort Partners and the sale of a property by Goldstein on Shelbourne Road for a price of €57.5 million. In addition to that, there was a further €18.4m due to be realised by Goldstein from the sale of the Kilpedder lands, which was to be provided to RELM. In this regard, Goldstein points out that under the terms of the Extension Letter, this de-leveraging strategy had to be ‘satisfactory’ to RELM. However, Goldstein made uncontroverted submissions that the foregoing de-leveraging strategy went beyond RELM’s minimum requirements of a 50% reduction in debt.

45. In particular, Goldstein relies on this fact to support its claim that the Extension Letter (and compliance with the three conditions contained therein) was not an end-point, but rather a staging post on the way to the 2 + 1 year extension (which it claims was agreed with RELM). Goldstein’s argument appears to be that the fact that Goldstein went beyond the requirements of the Extension Letter is evidence that the First Six Month Extension (in the Extension Letter) was just a ‘waypoint’ on the road to the 2 + 1 year extension. Otherwise, according to Goldstein, what reason would there be for Goldstein to go beyond the minimum requirements? While not determinative of the estoppel issue, this is certainly an argument in Goldstein’s favour, particularly from the perspective of whether allowing the litigation to proceed would be facilitating an abuse of process.

46. A third point in Goldstein’s favour is the fact that one is dealing with an extension of a performing loan, which is not usually the case, in litigation which is alleged to amount to an abuse of process. In this regard, Goldstein made uncontroverted submissions that RELM is making money from the Loans and that in many such situations it would be anticipated that such a loan would be extended for the 2 + 1 years.

47. Fourthly and finally, uncontradicted submissions were made on behalf of Goldstein that, during the First Six Month Extension under the Extension Letter, the re-financing proposals were duly progressed by Goldstein and that Goldstein was ready willing and able to make the interest payments, then unpaid. In this regard, counsel for Goldstein stated that: “We had the money to pay the interest. We offered it up. We indicated that we would pay it once the agreed facilities were granted in accordance with all the representations that had been made.” (at Day 2, p 109, line 17 of the Transcript)

48. While this factor is not determinative, it is nonetheless a factor in Goldstein’s favour, when it comes to considering whether its case is so weak that permitting it to continue would amount to facilitating an abuse of process.

49. For all the foregoing reasons, while this Court accepts the argument made by RELM that Goldstein has a very weak case for alleging the existence of an agreement or an estoppel based on representation, in this Court’s view, this is not a case that is bound to fail such that it would amount to an abuse of process, if it were allowed to continue.

B. THE VACATION OF THE LIS PENDENS

50. Unlike the position regarding the law in relation to strikeout, there was no agreement between the parties regarding the law in relation to the registration (and vacation) of a lis pendens under s. 121(2)(a) of the 2009 Act.

51. In particular, RELM believes that under s 121(2)(a) what is not registrable as a lis pendens is litigation (as in this case) alleging that the Receivers were not properly appointed (on the grounds, as in this case, that there was no act of default as the Final Repayment Date had been extended). For this reason, RELM seeks an order from this Court vacating the lis pendens.

52. Goldstein takes the contrary view and argues that under s 121(2)(a), such a lis pendens is properly registrable and it relies on the decision in Fay interpreting that section. In that case, Butler J. refused to vacate a lis pendens relating to litigation challenging the appointment of a receiver who had been appointed to an individual borrower’s property.

53. However, RELM relies on what appears, to this Court, to be a stricter interpretation by Clarke J. of s 121(2)(a) in Moorview, in which a lis pendens was vacated regarding litigation against a receiver who had been appointed to a corporate borrower’s property.

54. Goldstein claims that this Court must follow the decision of Butler J. and find that the lis pendens is registrable, in light of the Worldport doctrine (i.e. that one High Court judge should follow the decision of another High Court judge unless there are substantial reasons for not so doing - such as an oversight of law or precedent, error or that the law has moved on.)

55. On the Worldport point, RELM argued that this is not a Worldport situation. This is because RELM states the decision of Clarke J. in Moorview, and the decision of Butler J in Fay, is a situation where two different judges of the High Court (as they both then were) took two different interpretations of the same statutory provision. On this basis, RELM argues that this is not a situation where this Court is departing from a decision of one other judge of the High Court, in not following Fay. Rather, RELM claims that it is open to this Court to bring its own assessment to bear upon a situation where there are two different interpretations from two different High Court judges of the one statutory provision.

56. Counsel for RELM put the matter as follows: ‘Now, as to the lis pendens issue, Judge, frankly, [Counsel for Goldstein] doesn't attempt to engage with my analysis of the law in relation to receivership. He doesn't attempt to address what Mr. Justice Clarke said in Moorview about the nature of a receiver's rights and the reason is that he can't because Mr. Justice Clarke is obviously correct about all of that. What that leads to is a situation in which two highly regarded Judges formerly of the High Court, one former Chief Justice and one now Judge of the Court of Appeal, appear to have taken a different view when Judges of this Court in relation to a similar issue. That is not a Worldport scenario, Judge. That's a scenario where you have conflicting authority and, respectfully, you are entitled to bring your own assessment to bear upon it.’

57. Finally, in this regard, it is relevant to note that reliance was also placed by Goldstein on a judgment of Roberts J. in Darcy v AIB Plc [2022] IEHC 162, which was also a case involving a receiver appointed to an individual’s property. In that case, Roberts

J. followed Fay. However, it is important to note that there is no indication from the judgment in Darcy that any reference was made in that case to the interpretation of s 121(2)(a) contained in Moorview. In particular, there is no indication from the judgment that the argument was made before Roberts J. that there are two different views in the High Court as to whether registration of a lis pendens was possible, in the context of litigation against a receiver.

58. Having considered the issue, and in light of the terms of Clarke J.’s judgment, this Court sees merit in RELM’s claim that there are in fact two different interpretations of s 121(2)(a) of the 2009 Act. On this basis, it seems clear to this Court that the legal position will only be clarified once there is a decision from the Court of Appeal (or the Supreme Court) on what appears to this Court, at least, to be two different interpretations of a statutory provision. Pending such a determination, this Court also agrees with counsel for RELM that it is open to this Court to bring its own assessment to bear on which of these two interpretations is correct, and so to determine whether as a matter of principle litigation against a receiver is registrable as a lis pendens in relation to land, to which the receiver has been appointed.

The relevant legislation

59. Before considering the two approaches taken by Clarke J. and Butler J. to s 121(2)(a), it is necessary to set out that section: ‘The following may be registered as a lis pendens:

(a) any action in the Circuit court or the High Court in which a claim is made to an estate or interest in land (including such an estate or interest which a person receives, whether in whole or in part, by an order made in the action) whether by way of claim or counterclaim in the action’ (emphasis added)

60. In light of the clear terms of this section, the key issue in Moorview, in Fay and indeed in this case is whether litigation, which is against a receiver, who has been appointed over land, is ‘a claim is made to an estate or interest in land’. To answer this question, Clarke J. went back to first principles, and for this reason, it is necessary to set out in some detail his judgment in this regard.

Clarke J.’s analysis of s. 121(2)(a) in Moorview

61. The key section of Clarke J.’s judgment begins at para. 13 and states: ‘13. It follows that it seems to me that I should now decide the issue of principle which arises between the parties as to whether the connection which Mr. Jackson may have to the relevant property justifies the registration of a lis pendens against him. I now turn to that question.

Analysis

14. Neither counsel was able to find any direct authority on the point. In those circumstances it seems to me that the matter must be determined from first principles. A lis pendens is designed to give notice of the fact that proceedings relating to land are pending before the court. Insofar as a lis pendens is registered against a named individual, then it seems to me that its purpose must be to bring to the attention of any interested party, the fact that there are proceedings in being against the person concerned which relate to the ownership of property or an interest in property. It may be that there is contained within the one set of proceedings a number of claims against a number of defendants in circumstances where not all of the claims are pursued against all of the defendants. It seems to me that, as a matter of first principle, it could never be the case that a defendant who happened to be properly joined in a set of proceedings in relation to some relief that did not relate directly to land in which the relevant defendant had an interest, could properly be the subject of a lis pendens. There would, in those circumstances, be no lis pending in relation to the ownership of land or an interest in land in respect of the person concerned. The underlying rationale behind the registration of a lis pendens is as was noted by Geoghegan J. in A.S. v. G.S. [1994] 1 I.R. 407. In the course of his judgment in that case Geoghegan J. noted with approval the explanation by Lord Cranworth in Bellamy v. Sabine [1957] 1 De. G. & J. 566. The relevant passage speaks of "litigation... pending between a plaintiff and a defendant as to the right to a particular estate...".

15. That quote seems to me to express the fundamental proposition. The issue between the parties must relate to the ownership of some interest in land. Where there is more than one defendant in the proceedings, then in order that a lis pendens be validly registered in respect of a particular defendant, then the issues which arise on the pleadings and which are being bona fide pursued by the plaintiff insofar as the relevant defendant is concerned, must relate to the ownership of some interest in land.

16. In those circumstances, it does not seem to me that the position of a receiver or agent is captured. A receiver does not own any interest in lands which are properly described as being owned by the company to which the receiver has been appointed. The lands remain owned by the company (in receivership). The fact that the receiver may well be entitled, provided that all necessary formalities are complied with, to execute a deed of transfer of a relevant interest in property in the name of the company does not alter that fact. It is the company which transfers the property. The receiver is simply entitled, by virtue of the debenture in favour of the relevant lender, and his appointment, to cause the company to effect the transfer. There is a real sense in which the receiver's position in this regard is no different than that of the directors of a solvent company who are, of course, entitled to act on behalf of the company, to sell its property, and, within the articles of association and the law generally, to fix the company seal to any relevant deed of assurance. The fact that, in different circumstances, it may be the receiver rather than the directors who can cause the company to execute a deed of assurance, does not make the receiver any more a person with an interest in the land owned by the company than the directors were persons with an interest in the land owned by the company.

17. Therefore, it seems to me that, insofar as a plaintiff may wish to contest the ownership of land held by a company in receivership, then it is that company in receivership who is the proper defendant to that aspect of any relevant proceedings rather than the receiver himself. If a party wishes to obtain injunctive or similar relief against the receiver then that is, of course, possible, but such a claim is not a claim relating to an interest in land but rather is a claim to an injunction.

18. In those circumstances, it does not seem to me that a receiver has a sufficient interest in any land purportedly owned by the company to which the receiver has been appointed so as to warrant the registration of a lis pendens against the receiver arising out of proceedings relating to those lands. In an appropriate case there is no reason why a lis pendens cannot be registered against a company in receivership.’ (emphasis added.)

62. At para 24 of her judgment in Fay, Butler J. quoted the key sections from this extract before analysing same.

Butler J.’s analysis of Moorview

63. Having quoted from Moorview, Butler J. states: ‘The key passage is clearly that at the beginning of paragraph 16 to the effect that, although a receiver may be legally entitled to execute a transfer of land owned by a company, this does not alter the fact that the receiver does not own any interest in the lands transferred by him’ (emphasis added)

64. This is, in this Court’s view, a key passage in Clarke J.’s judgment and in Butler J.’s judgment, and is one with which this Court agrees. It is to be noted that in Moorview, on the basis that a receiver does not have any interest in the lands the subject of the receivership, Clarke J. held that the lis pendens in that case had to be vacated. However, in Fay, Butler J. refused to vacate the lis pendens and she finds, in effect, that a receiver does have an interest in the land (which is, arguably at least, contrary to the interpretation taken by Clarke J.) Prima facie, therefore, there appears to be two different interpretations of s 121(2)(a) of the 2009 Act. This is why, as noted previously, this Court agrees with counsel for RELM that this is not a Worldport situation, but rather a situation where this Court can bring its own assessment to bear on which interpretation is correct.

65. One of the reasons Butler J. appears to reach a different interpretation of s. 121(2)(a) is because she distinguishes the facts of the Moorview case from the case before her in Fay. This is because in Fay it is clear that there was a challenge to the validity of the appointment of the receiver, while Butler J. states that in Moorview the validity of the appointment of the receiver did ‘not appear to have been in issue’ (at para 25).

66. On this basis she concludes that: ‘[I]t is certainly arguable that the very clear statement made by Clarke J in Moorview to the effect that the receiver has no interest in lands owned by company to which he has been appointed but is entitled to effect to transfer those lands on behalf the company does not hold good if the validity of the receiver’s appointment is put in issue.’ (emphasis added)

67. In considering this point, firstly, it is to be noted that Butler J. is not making a statement of principle in a definitive fashion. Rather she is stating that it is merely ‘arguable’ that the rule, that a lis pendens is not registrable in litigation against a receiver, is not applicable if the validity of the appointment of the receiver is at issue.

68. Secondly, this Court agrees that Clarke J.’s statement is very clear, albeit that this Court takes the view that this means what it says on its face (i.e. without exception, since no exceptions are contemplated by Clarke J.), and so that a lis pendens is not registrable in litigation against receivers.

69. Thirdly, this Court also agrees with Butler J. that the point made by her is arguable (i.e. that where the validity of the appointment of a receiver is at issue, then it is arguable that the litigation does concern an interest in land). However, while arguable, this Court would nonetheless reach a different conclusion than Butler J. (since this Court does not see that any exception is contemplated either by Clarke J’s language, by his reasoning, or indeed under the express or implied terms of s. 121[2][a]).

70. Fourthly, counsel for RELM submitted that Butler J. was incorrect in stating that Moorview did not involve a claim as to the validity of the appointment of the receiver. In this regard, he referred to para. 15.17 of the main judgment in Moorview Developments Ltd and Others v First Active Plc & Ors [2009] IEHC 214, where Clarke J. states: ‘The Cunningham group submitted that it was a consequence of the fraud and improper purpose claim that Mr Jackson Jackson was improperly appointed as receiver.’

71. Counsel for Goldstein did not contradict RELM’s submission that Butler J. was wrong in stating that the Moorview case did not involve a challenge to the appointment of a receiver. Indeed, it was noteworthy that counsel for Goldstein did not engage in any way with the point, made by RELM, that Moorview is authority for the principle (without apparent exception) that litigation in a receivership (and so apparently whether a corporate or individual receivership) is not registrable as a lis pendens.

72. Instead, counsel for Goldstein rested his entire case (in relation to the lis pendens issue) on the fact that in Fay the High Court refused to vacate a lis pendens and that, in light of Worldport, this Court is bound to follow Fay, by refusing to vacate the lis pendens.

73. However, as already noted, this Court agrees with RELM that this is not a Worldport situation. Thus, this Court believes that it is entitled to apply its own assessment to the two interpretations of s. 121(2)(a). In doing so, this Court would favour the view of Clarke J. This is because it seems to this Court that he is saying that, by its very nature, the role of a receiver is not a role that creates an interest in land. If one accepts this view, then, in this Court’s view, it follows that it is irrelevant if one is dealing with litigation against the receiver, which challenges the validity of the appointment of a receiver, or some other type of litigation against a receiver.

74. Furthermore, it seems to this Court, whether one is dealing with a validly appointed receiver or an invalidly appointed receiver, neither has an interest in land. This is because, on the basis of Clarke J.’s ‘first principles’, there is still no interest in land at issue. Accordingly, any litigation against a receiver, whether it involves a claim that the receiver is invalidly appointed or not (and arguably, whether it is a corporate receivership or an individual receivership) that litigation still does not involve a claim to an interest in land. Accordingly, it seems to this Court that, in respect of any such litigation, there is no claim to an interest in land which can be registered as a lis pendens.

75. In support of this conclusion is the comparison which Clarke J. made between receivers, who transfer land on behalf of a company, and directors, who transfer land on behalf of a company. In both situations, the land is owned by the company, the directors or the receiver merely the ‘transfer of a relevant interest in property in the name of the company’. Taking Clarke J.’s analogy further, it seems clear to this Court that litigation against a director, claiming that he was not validly appointed, would not be registrable as a lis pendens. This is because, in this Court’s view, that litigation relates to the validity of the director’s appointment, and not to any interest she has in the company’s land (even though she may be authorised to transfer the land in the company’s name). At most, that litigation relates to the ‘power’ of that director to execute a transfer of the land, but, in this Court’s view, it is not litigation involving a claim to an interest in the land. Similarly, it seems to this Court that litigation challenging the authority of a receiver concerns the power of that receiver to execute a transfer in the company’s name and is not litigation relating to an interest in land.

76. Another situation analogous to that of a receiver (who is appointed under a deed of appointment to transfer land) is that of a person who is appointed under a power of attorney to transfer land. If there were to be litigation claiming that the person so authorised was of unsound mind, that person might not be able to give good title to the transferee of the land (just as an unlawfully appointed receiver would not be able to give good title to land). However, that litigation concerning the attorney would not, in this Court’s opinion, be registrable as a lis pendens since it does not amount to a claim made to an interest in land – it is a claim that a person is of unsound mind. At most, it relates to the ‘power’ of that person to execute a transfer of the land, in the attorney’s name, rather than litigation involving a claim to an interest in the land. This is similar in this Court’s view to a challenge to the authority of a receiver.

77. Finally in this regard, one might have a situation where a receiver was subject to litigation, which affected her ability to act. This might arise, not because it was alleged by the borrower that the borrower had not in fact breached the terms of the loan/security, but for example, because a person, duly appointed as a receiver, became bankrupt during the receivership.6 In that scenario, the receiver would be disqualified from acting as a receiver. It seems to this Court that even though this would affect the title which any transferee would acquire from the disqualified receiver, as a matter of principle, any litigation regarding the receiver’s bankruptcy would not be a claim made to an estate or interest in land. At most, it relates to the ‘power’ of that receiver to execute a transfer of the land in the company’s name. However, it is not litigation involving a claim to an interest in the land. In this Court’s view, the same is true regarding a receiver, who is said not to have authority to transfer the land in question in the company’s name.

78. In summary, this Court’s reading of Moorview is that Clarke J. interprets s 121(2)(a) to mean that litigation against receivers is not registrable as a lis pendens because of the very nature of receiverships. In particular, it is to be noted that Clarke J. does not seek to restrict this principle to cases where there is no challenge to the appointment of a receiver. Indeed, it is to be noted that he also does not seek to distinguish between corporate receiverships and individual receiverships. It seems to this Court that, as a general principle, the nature of the role of a receiver is one where she does not, by virtue of that role, acquire an interest in land. Rather, a receiver simply has the contractual right (‘by virtue of the debenture’) to transfer the interest of a borrower to S.433(1)(a) Companies Act, 2014. a transferee. Accordingly, litigation against that receiver, even if it relates to the validity of her appointment, is litigation which relates to the power of the receiver to transfer land, and not to any interest which the receiver has in land, since she has none. Thus, any such litigation is not registrable as a lis pendens, in this Court’s view.

79. Before concluding on this issue, it is important to consider Butler J.’s reasoning for reaching a different conclusion in Fay.

Butler J.’s reasons why a lis pendens is registrable

80. Butler J. takes the view, in the context of an individual receivership, that litigation which claims that a receiver was invalidly appointed, is capable of registration as a lis pendens. At para 27 of her judgment, Butler J. makes the argument that if individual landowners, who claim that a receiver should not have been appointed, could not register a lis pendens (which effectively injuncts the sale of their land), they would have no remedy.

81. In this Court’s view, this alleged injustice does not alter the wording of s 121(2)(a) and in particular it does not convert the contractual right of a receiver to sell the land into an ‘interest in land’. In this Court’s view, the wording of s 121(2)(a) is clear, it is an interest in land, which is covered by that section, not the contractual or statutory right of a receiver (or indeed of a director or of an attorney) to sell that interest (in the name of a borrower) to a third party. Thus, litigation which impinges upon the right or power of a person authorised to transfer land, in another party’s name, is not, in this Court’s view, litigation involving a claim to an interest in that land.

82. Secondly, this perceived injustice can be eliminated by the owner of the land going to court to convince a court that it is just to issue an injunction against the allegedly improperly appointed receiver, rather than registering a lis pendens (and thereby obtaining an effective injunction without having the merits of the case tested in court).

83. A key argument in Fay (in favour of a challenge to the validity of the appointment of a receiver being treated as a claim to an interest in land) is the fact that a third party cannot take good title from a receiver that was not validly appointed. Taking a broad view, it could of course be said that any claim regarding the authority of a receiver (or indeed any authorised signatory) who signs a transfer of land (in the name of the owner) is indirectly a claim which concerns an interest in land. This is because if that person does not have authority to sign the transfer, then the transferee is unlikely to get title.

84. On this basis, one could conclude that litigation which challenges the validity of a receiver’s appointment (and seeks damages for trespass) is an action in which a claim is made to an estate or interest in land. As a matter of logic, it is difficult to argue with Butler J.’s point that if a receiver is not validly appointed then a transferee is unlikely to get good title from that receiver and so the transferee’s ‘interest in land’ (which she expects to get) will be affected. While a claim challenging a receiver’s authority may indeed have an effect on a transferee’s title, in this Court’s view, the claim is still not a claim to an interest in land, but rather a claim as the validity of the appointment of the receiver. Furthermore, it appears to this Court that this approach conflicts with Clarke J.’s reasoning, since his clear view is that the company owns the property (i.e. ‘the estate or interest’ in the property) and the receiver is ‘simply entitled’ to ‘cause the company to effect the transfer’. This Court prefers the view expressed by Clarke J., which appears to this Court to be that, by its very nature, a receiver simply effects the transfer and a challenge to her appointment does not alter that fact, and in particular it does not convert that claim into one involving a claim of an interest in land.

85. Looking at this issue another way, and applying the Fay reasoning, any litigation about the mental capacity of an attorney, the validity of the appointment of a director, the bankruptcy of a receiver, the invalidity of the appointment of a receiver, is indirectly something which impacts upon the title which a transferee of the property might obtain from any of those parties. On this basis, any such litigation could be said to amount to litigation in which there is a claim to an interest in land. However, in this Court’s opinion, by its nature, a claim about the bankruptcy of a receiver, the mental capacity of an attorney, the validity of the appointment of a receiver and the validity of the appointment of a director are not claims about an interest in land, even if they could indirectly affect the title which a transferee might obtain.

86. As regards any perceived injustice to third party transferees, by virtue of the fact that a landowner cannot get, in effect, an automatic injunction (without any considerations of the merits of the claims) in the form of lis pendens, Clarke J. deals with this at para.

17 of his judgment. To paraphrase him, if ‘a party’ (and he does not distinguish between corporate and individual plaintiffs) wishes to obtain injunctive relief against a receiver, it is of course possible, but that party can always seek an injunction against the receiver. However, Clarke J. pointedly notes that such a claim would not be a claim relating to an interest in land, but a claim to an injunction.

The practical effects of the registration of a lis pendens

87. Finally, while not determinative, it is relevant to note the practical effect, or the reallife consequences, of adopting Clarke J.’s stricter interpretation of s 121(2)(a), rather than the broader one taken by Butler J. Before doing so, it is important to recognise that the raison d’être for the registration of a lis pendens is the protection of a third party who is put on notice of an issue concerning an interest or title to land she is proposing to buy. While this may be the rationale for the existence of the lis pendens registration process, in practice, it is clear that the real power of a lis pendens is the power that it gives to a plaintiff to effectively end any prospect of a property being sold until the proceedings, which the plaintiff has issued, have been finalised.

88. This is the ‘chilling effect’ of a lis pendens referred to by Butler J. at para 15 of her judgment where she notes that the ‘practical effect’ of a lis pendens is to ‘limit the landowner’s ability to sell’ the lands. Indeed, as observed by O’Moore J. in O’Loughlin v Moran [2021] IEHC 852 at para. 7, the registration of a lis pendens can be used as ‘a tactic’ by a plaintiff. In this regard, at para. 52, he observed that “the harm that can be caused by the continued registration of a lis pendens… is selfevident”. This same point was made even more forcefully by Costello J. in Barry v Buckley at pg. 307: ‘A disappointed purchaser, by instituting proceedings for specific performance and by registering a lis pendens against the land which he alleges he has purchased, can effectively prevent a resale of the lands for a considerable time

– perhaps extending over several years. Obviously substantial injustice could thereby result, both to the owner of the land and to a subsequent innocent purchaser.’ (emphasis added)

89. This point made by Costello J. is clearly not restricted to a disappointed purchaser and applies equally to a borrower whose property has been put into receivership, and who feels aggrieved, as in this instance, over the failure of the lender to extend a loan. In both situations, it is the simple act of instituting proceedings, rather than the merits of the claim, that leads to an effective injunction on the sale of the land.

90. All of this means that the sale of land can be ‘effectively prevent[ed]’ by simply issuing proceedings (and the registration of a lis pendens), irrespective of the merit of those proceedings. In this Court’s view, this is a further reason the stricter interpretation of s. 121(2)(a) is more appropriate. To put it another way, if a plaintiff is to be entitled to an effective injunction regarding the sale of land, without any consideration of the merits of her proceedings, this entitlement should be restricted to cases which very clearly involve ‘an interest in land’.

91. In this regard, the facts of this case illustrate this point. This is because, while Goldstein’s case is not ‘bound to fail’, in this Court’s view it is a very weak case (based on the evidence before this Court, at this stage in the proceedings). As such, it is not a case which is likely to merit an injunction preventing a receiver from selling the property. Nonetheless, this would be exactly what Goldstein would effectively have, if this Court were not to interpret s 121(2)(a) in the narrow manner suggested by Clarke J.

92. For all these reasons, this Court would respectfully prefer, what this Court sees as Clarke J.’s interpretation of s 121(2)(a) over that of Butler J. In this Court’s view Clarke J.’s interpretation is that litigation contesting the authority of a receiver is not litigation which is registrable as a lis pendens, because a receivership by its very nature does not grant a receiver an estate or interest in land. Should lis pendens be vacated as proceedings are not being prosecuted bona fide?

93. In light of this Court’s conclusion that the lis pendens should be vacated, it is not necessary to consider the alternative argument that the lis pendens should be vacated because the proceedings are not being prosecuted by Goldstein in a bona fide manner.

94. However, since it is possible that this judgment might be appealed, and an appellate court might favour Butler J.’s interpretation of s. 121(2)(a), rather than Clarke J.’s, or otherwise reach a different conclusion from this Court, it is proposed to very briefly outline this Court’s views regarding this alternative argument.

95. Firstly, in reaching a conclusion in this regard, it seems from Togher Management Company Ltd & Anor v Coolnaleen Developments Ltd (in Receivership) [2014] IEHC 596, at para. 82, that this Court must take Goldstein’s case at its height. In that case, Haughton J. observed that: ‘In particular, at this interlocutory stage in the proceedings where there is no compelling evidence adduced on the part of the defendants/receiver to suggest a lack of bona fides, and where the plaintiffs assert their bona fides and do so plausibly, and in the absence of oral evidence or any cross examination on affidavit, it would be unreasonable of the court to determine this issue [that the lis pendens be vacated because it was not being prosecuted bona fide] against the plaintiffs.’

96. Bearing in mind that this Court must take Goldstein’s evidence at its height, RELM’s primary argument seems to be that there was a period of 8 months between the appointment of the Receivers and Goldstein’s claim that the Receivers were invalidly appointed. Furthermore, RELM points out that during this period there were numerous instances of Goldstein referencing, and accepting without challenge, the appointment of the Receivers.

97. In addition, RELM points out that immediately prior to the institution of the proceedings and the registration of the lis pendens, Goldstein made an offer to RELM to refinance the underlying loans. RELM claims that this is evidence that the proceedings, and in particular the registration of the lis pendens, are being pursued by Goldstein for an ulterior purpose, namely as leverage to force RELM to accept that offer from Goldstein.

98. It is of course true that Goldstein’s claim that RELM represented that there would be an extension of the Loan beyond the Final Repayment Date is weakened considerably by the absence of any objection from Goldstein for a period of 8 months after the appointment of the Receivers. Put simply, if RELM really had agreed an extension of the Final Repayment Date, why was this not the first thing that Goldstein said, when the Receivers were appointed? As already noted, the suggestions that there was a breakin in Mr. Sutcliffe’s office or that he was keen to resolve matters without litigation, ring hollow when one considers the litigation in which he was engaged, during that very same period, with RELM (i.e. the Excluded Assets Proceedings).

99. However, it is one thing for a plaintiff to bring what appears to be a weak claim (because of delay or otherwise), which a plaintiff is entitled to do, and it is a different matter entirely for a plaintiff to have instituted/continued proceedings with mala fides. On the basis of the facts before this Court at this juncture, and in particular without cross examination, this Court cannot conclude that Goldstein has not prosecuted this case with bona fides. This is because delay in cases like this is not unheard of (even if it does weaken a plaintiff’s case). Indeed, if Goldstein were seeking an injunction against the Receivers, such delay might be fatal. However, this Court is not deciding an injunction application, it is being asked, in effect, to find that Goldstein acted with mala fides, as evidenced by its delay. Just as it was in Togher, this Court believes that ‘in the absence of oral evidence or any cross examination on affidavit, it would be unreasonable’ of this Court to make findings of an absence of bona fides, and so in effect, mala fides, on the part of Goldstein.

100. The other complaint in this respect against Goldstein was that it made an offer to RELM to refinance the Loans, and then immediately instituted proceedings and registered a lis pendens, as leverage to persuade RELM to accept that offer. The making of an offer is something which happens in many cases to settle disputes (before and after the institution of proceedings). As a matter of public policy, the making of offers to settle litigation should not be discouraged. For this reason, this Court cannot take this evidence (of the making of an offer to resolve a dispute, whether before or after the institution of proceedings and the registration of a lis pendens) as per se indicating mala fides, or in combination with a delay in issuing the proceedings. Again, in the absence of oral evidence or any cross examination, it would be unreasonable of this Court to make findings of mala fides against Goldstein in this regard.

101. For these reasons, and assuming that the factual issues in this case will be decided in favour of Goldstein, as this Court must do in considering this application, this Court does not believe that it can make a finding at this stage that the proceedings are not being prosecuted bona fide.

CONCLUSION

102. For all the reasons set out, this Court refuses to strike out the proceedings as bound to fail, but it will vacate the lis pendens on the grounds that it is not registrable. This is because, in this Court’s view, the proceedings against the Receivers alleging that they were unlawfully appointed are not proceedings ‘in which a claim is made to an estate or interest in land’, for the purposes of s.121(2)(a) of the 2009 Act.

103. This matter will be put in for mention a week from the date of delivery at 10.45 a.m. to deal with any final orders and costs. However, on the assumption that it should not be necessary to expend costs on a further court sitting, and 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 so 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’.