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Damages not an adequate remedy where receiver is granted interlocutory orders for possession

By: Emma Foley BL

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Court of Appeal upholds decision of the High Court to grant interlocutory reliefs to a receiver in the form of orders for possession of properties, on the grounds that: the receiver made out a strong case that three commercial loans secured on two commercial units and one residential buy-to-let unit were owned by the company that appointed him and were in arrears, that he had been validly appointed as receiver over the properties; and no arguments were advanced to dispute his submission that damages were not an adequate remedy in the circumstances of the case or that the balance of convenience favoured granting the reliefs sought.

Court of Appeal – interlocutory injunction – receiver granted possession of security properties and ancillary reliefs in interlocutory motion – Court was satisfied that the Second Named Defendant was served with the motion in compliance with the Order for substituted service - Order 25 Rule 1 – Order 25 Rule 2 – motion seeking a trial on points of law – Court of Appeal has no jurisdiction to hear a trial on a point of law before the substantive hearing – the Receiver had exhibited the relevant loan documentation and the relevant registration of charges on the folio – the Appellant’s failed to deny that they entered into the loan agreements – the appellant’s argued that their loans were owed by a third-party by way of promissory note – no evidence of promissory note in court – screenshot of computer record from the original lending Bank did not constitute evidence of a valid promissory note – the argument that the Bank had accepted the promissory note by failing to return is unstateable - s.31 of the Registration of Title Act 1964 – Cheldon Property Finance limited had been registered as holders of the charge on all three folios – conclusive evidence that Cheldon owned the securities – evidence of mortgage sale agreement was complete – satisfied good arguable case that Cheldon Property Finance Limited owned the loan facilities – good arguable case the receiver had been properly appointed – demand issued against the defendants – loans remained unpaid – deeds of appointment exhibited before the High Court - Order 40 Rule 6 – Order 40 Rule 9 – no requirement that a deponent in an affidavit state their residence or precise time of day – additional grounds not raised during High Court hearing not properly before the court - no arguments advanced on adequacy of damages or the balance of convenience by the Defendants in the High Court – High Court was correct to grant interlocutory order – appeal dismissed.

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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