Friday, July 22, 2022

High Court reporters

A company in receivership is asking the High Court to grant an injunction to restrain the chief executive of Davy Group from completing his purchase of commercial units in a Co Mayo shopping centre.

Arknite Limited claims the receivers purportedly appointed to Units 1-8 at Silverbridge Shopping Centre in Claremorris do not have the power to sell the premises pursuant to a purported security document.

It says the chief executive of Davy Real Estate, David Goddard, has agreed to purchase the commercial units on foot of a property pack uploaded onto an auction website that was “seriously incomplete and substandard” and which allegedly omitted a crucial page of an alleged copy of the mortgage.

Michael O’Connor BL, instructed by Donnacha Anhold of Carter Anhold & Co Solicitors, said the property failed to sell at an online auction, but it appears the auction reopened for Mr Goddard only.

He said Arknite owns the eight units, which are not held as a charge. Counsel added that the company is awaiting a date for the hearing of its High Court appeal of a Circuit Court’s decision to refuse to grant an injunction restraining the receivers from selling the property.

Brian Conroy BL, for Mr Goddard, said the proceedings are moot, an abuse of process and “completely wrongheaded”.

Counsel said proceedings seeking to restrain the sale of a property are usually brought against the seller rather than the purchaser, who, in this case, is an “entire stranger” to the plaintiff company. He questioned to what legal basis his client owes a duty to Arknite not to buy the units.

He said Mr Goddard entered into an enforceable contract on June 30th which transferred to him the entire beneficial interest of the property. Mr Goddard was contractually obliged to complete the purchase on Thursday.

However, without prejudice, Mr Conroy said his client was prepared to give an undertaking not to complete the purchase until the matter returns before the court next week.

Personal settlement

In a sworn statement, Harold Conway, of Belclare, Westport, said he and his brother Peter Conway are directors and shareholders in Arknite. He said financial fund Promontoria Arrow Limited “purportedly” appointed receivers over the premises in September 2017.

Mr Conway said he and his brother entered into a personal settlement with Promontoria in 2019, at which point it was agreed various things, including that they would pay €860,000 by the end of that year. In return, they would be released from all obligations in connection with the security and the charge over certain assets would be released, he claims.

They paid €647,500 and are continuing to raise the balance, he said, adding that the company was never party to any settlement agreement.

Arknite wants a temporary injunction to prevent Mr Goddard from purchasing the units, as well as a declaration that he cannot have acquired or cannot acquire any title over the premises from either Promontoria or the receivers.

Mr Justice Brian O’Moore noted the undertakings given without prejudice by Mr Goddard and adjourned the matter to a date next week.

The case was originally brought against Mr Goddard and J & E Davy, but it was agreed the firm could be released from the proceedings as it transpired it was not relevant to the issues.

* This article was amended on Friday, July 22nd, 2022 at 18:43 to correct David Goddard’s job title

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