Duggan v Supermacs Ireland Limited

THE HIGH COURT Record No. 2021 245 S [2026] IEHC 218 BETWEEN RICHARD DUGGAN PLAINTIFF AND SUPERMACS IRELAND LIMITED DEFENDANT JUDGMENT delivered by Mr. Justice Sean Gillane on 13 April 2026 Introduction 1. In these proceedings, the plaintiff seeks judgment against the defendant in the amount of €124,502.72 plus interest at 13.25% which he claims is due and owing to him in respect of unpaid rent by the defendant. 2. The background to that claim is the occupation by the defendant, as tenant, of a property at 24 High Street Kilkenny (“the premises”) during a period from April 2020 to March 2021 (“the relevant period”). 3. The case was heard before me over the course of three days (9th - 11th December 2025) and both parties called oral evidence and made legal submissions. 4. While the factual background has some unusual elements, it does not appear to me that there is any real dispute over most of the central factual issues. It is necessary to set out some of that background in order to understand the arguments advanced by the parties. Factual Background 5. The plaintiff is a businessman and retailer who has been running a family business described by counsel as “intergenerational in nature” for many years on High Street in Kilkenny. 6. The plaintiff acquired the premises in March 2008 and was the owner of the premises until the 16th of March 2021. 7. In circumstances where counsel for the defendant indicated at the outset of the hearing that the plaintiff was not being put on proof in relation to his title to the premises, it is unnecessary for the purposes of this judgment to set out the conveyancing history of the premises in any further detail. 8. The defendant is a private company limited by shares that runs a well-known fast-food chain across Ireland. Mr. Patrick McDonagh is the owner and managing director of the defendant company. 9. The premises has been the subject of a lease agreement since 1996, concluded by the plaintiff’s predecessor in title. The defendant acquired the leasehold interest in the 2 premises by way of assignment dated the 8th of February 1998 and runs a fast-food business from the premises. 10. In essence, once the plaintiff acquired the premises, he became the defendant’s landlord and the defendant remained in occupation of the premises up to and including the relevant period. 11. The annual rent for the premises was set by an arbitration determination dated the 20th of December 2008. The rent was fixed at a rate of €186,754.00 per annum to be paid by way of twelve monthly instalments of €15,562.84. Payments were to be made by direct debit on the 15th day of each month. 12. The plaintiff had financial arrangements in place with Allied Irish Banks (“AIB”) and as part of those arrangements, a number of properties, to include the premises, were offered as security in 2011. 13. The plaintiff ran into financial difficulty and ultimately fell into default in relation to the terms of his loan agreements with AIB. It is clear that the plaintiff engaged extensively with AIB, through his financial adviser, to seek to resolve the issues. One proposal, to which I will return below, was the sale of the premises. It appears that the premises was unsuccessfully placed on the market in 2016. 14. On the 22nd of October 2018, AIB assigned the plaintiff’s debt to Everyday Finance DAC (“Everyday”). 3 15. On the 17th of February 2020, Everyday appointed a receiver over the assets charged in the relevant indenture of mortgage, to include the premises. This appointment was expressed to be in pursuance of the powers contained in the Conveyancing Act 1881 and the Land and Conveyancing Law Reform Act 2009 (“the 2009 Act”). 16. Immediately after the appointment of the receiver, Madden Property Consultants (“Madden”), acting on behalf of the receiver as managing agents of the premises, wrote to the defendant indicating that all rent payments should now be made directly to them. 17. The relevant period coincided with the appointment of the receiver and the challenges of the COVID-19 pandemic. 18. Of significance, in the context of the dispute between the parties, are the steps that the defendant took in relation to the payment of rent during the relevant period. 19. Between April 2020 and June 2020, the defendant paid no rent. Between July 2020 and November 2020, the defendant paid precisely half of what was due. In December 2020, the defendant again paid no rent. Between January 2021 and March 2021, the defendant again paid half of what was due. 20. On the 24th of June 2020, the defendant wrote to Madden requesting a 50% reduction in rent on the expressed basis that the premises had been closed for a period of time and trade had fallen since reopening. This request was not acceded to. 4 21. On the 25th of November 2020, Madden wrote to the defendant in respect of the arrears of rent between April 2020 and November 2020, demanding full payment of the outstanding amount. This was followed by a solicitor’s letter on behalf of the receiver on the 14th of December 2020 again demanding full payment. 22. During that time period, the plaintiff, through his financial adviser, continued to engage with Everyday and their agents in respect of his liabilities. The premises was put back on the market in 2020. 23. A settlement was reached between the plaintiff and Everyday in March 2021. On the 2nd of March 2021, a deed of discharge was executed in respect of the appointed receiver. The parties to the deed were Everyday, as charge holder, and the receiver, and the deed refers to the plaintiff as “the Borrower” and AIB as “the Assignor.” 24. The deed refers to the agreed termination of the appointment of the receiver over the charged asset i.e., the premises. The original security document was the mortgage agreement between the plaintiff and AIB dated the 6th of October 2011. 25. The deed of discharge provided: “The chargeholder hereby releases and discharges the Receiver from his Appointment in respect of the Discharged Assets under and by virtue of the Deed of Appointment giving effect to the Appointment and all his duties, responsibilities and liabilities incurred in respect of the Discharged Assets under and by virtue of the Deed of Appointment as and from the date hereof at 4:05pm.” 5 26. In broad terms, the settlement involved the sale of the premises, and the net proceeds of the sale were accepted by Everyday in full and final satisfaction of the plaintiff’s outstanding liabilities. A contract for sale was signed on the 5th of March 2021 and the sale of the premises was concluded on the 16th of March 2021. 27. As part of the sale agreement, the plaintiff allowed the purchaser to discount the purchase price by the full amount of rent due for March 2021. 28. The deed of settlement and release agreed between the plaintiff and Everyday provided at clauses 4.1.4 and 4.1.5 that, in consideration for the payment of the settlement sum by the plaintiff, Everyday would: “execute deeds of discharge in respect of the Receiver’s appointment over the Charged Assets; and at the sole cost of the Debtor, co-operate with and facilitate, to the extent reasonably within its capacity to do so, the Debtor in their pursuance of arrears, if any, of outstanding rent payable by the tenant in respect of the Sale Asset (the Arrears), through the provision of relevant information within the possession and/or control of the Lender. For the avoidance of doubt, the Lender shall disclaim any legal or equitable right in respect of the Arrears that they would, but for the successful completion of this Deed, otherwise have.” 29. As will be seen in this judgment, the latter provision is central to the dispute between the parties. 6 30. It is also necessary to refer to another feature of the background which, while not particularly germane to the core issues in this case, was an aspect that the parties spent a considerable amount of time on during the hearing. 31. It seems that in November 2020, Mr. McDonagh discovered that the plaintiff was at an advanced stage in relation to negotiations for the sale of the premises. It is clear that Mr. McDonagh had, by that time at least, an interest in buying the premises. 32. Mr. McDonagh wrote to the receiver alleging that he was being denied information in relation to the sale and that there was an “attempt to exclude us from the bidding process.” This letter appears to be undated but seems to have been received on or about the 25th of November 2020. 33. In this letter, Mr. McDonagh also threatened to seek an injunction and said that he would report the receiver to the Companies Registration Office and the Competition Authority unless it was confirmed that the defendant could participate in the bidding process. This complaint and the threat of legal proceedings was repeated in a further letter on behalf of the defendant dated the 10th of December 2020. 34. The solicitors for the receiver replied on the 14th of December 2020 denying any impropriety or any basis for injunctive relief. The issue of outstanding rent was also enmeshed in this letter. 7 35. On the 15th of December 2020, the solicitors for the defendant and Mr. McDonagh wrote to the receiver again complaining about being deliberately excluded from the bidding process and specifically referenced the “financial strength” of the defendant. The letter stated that a complaint had been lodged with the Competition Authority and that instructions had been received to issue proceedings for damages. The letter also contained the following passage: “Your client will be well aware that the market rent is determined by (inter alia) the turnover of the business carried on in the property. You [sic] Client will also be aware that because of COVID-19 turnover at this premises has been decimated since last March. For this reason our client sought a reduction in the annual rent and having discussed the matter with Madden Property consultants they agreed to the reduced rent.” 36. On the 23rd of December 2020, the solicitors for the defendant wrote to AIB Bank plc complaining about being excluded from the bidding process and threatening to issue proceedings for damages if the premises was sold without the defendant being given an opportunity to bid. 37. In January 2021, the defendant issued High Court proceedings seeking to restrain the sale of the premises. Those proceedings were ultimately overtaken by events and, as I understand it, are dormant. 38. On the 28th of January 2021, the solicitors for the receiver wrote to the defendant and Mr. McDonagh in relation to the High Court proceedings and the dispute in respect of the arrears of rent. The letter stated: 8 “In respect of the assertion in your letter of 15 December 2020 that Madden Property Consultants agreed to reduced rent, we are instructed that this is simply untrue. No rent reduction was ever agreed. We are instructed to respectfully refuse your client’s request for a copy of the documentation concerning our client’s appointment and you have not advised of the basis of this request… We do not propose to become embroiled in extensive correspondence rebutting your clients’ assertions, suffice it to say that our client’s position has been set out by our letter of the 14th of December 2020, which position our client retains. Your client is called upon to comply with their contractual obligations and restore the rental payment to the agreed amount, in the absence of which proceedings will issue seeking recovery of same.” Procedural History 39. On the 22nd of March 2021, the solicitors for the plaintiff wrote to the defendant demanding payment of the outstanding rent and indicating that a failure to discharge same would result in the issuance of summary judgment proceedings. 40. A further letter issued on behalf of the plaintiff on the 6th of April 2021 which dealt with the allegation that the defendant had been excluded from the bidding process. On that issue, it was said that the defendant had never directly approached the plaintiff in relation to the proposed sale and that he first learned of the defendant’s interest in purchasing the premises when the defendant initiated legal action. The letter also repeated the demand for the discharge of the outstanding rent. 9 41. The reply from the defendant, also dated the 6th of April 2021, is somewhat curious having regard to the sworn evidence given to me. The letter stated: “Our clients dispute your client’s claim herein. To enable us take [sic] our clients full instructions in this matter we would be obliged if you would clarify the basis of your client’s entitlement to claim the monies referred to and provide documentary evidence of his Title. Please also provide a full breakdown on how the amount claimed is calculated and the period it refers to. Our client has previously had demand for rent from Madden Property Consultants for payment of rent with whom they made an agreement in relation to the amount of same for the period of the COVID lockdown. They have also received correspondence demanding rent from Solicitors purporting to act for Receivers over the property. We would suggest that if the property was in receivership the only party entitled to make a claim for payment of rent for the period of the receivership is the Receiver.” 42. A response on behalf of the plaintiff dated the 9th of April 2021 emphasised the plaintiff’s entitlement to recover the rent and stated that the defendant must know what 10 rent was paid and what was due. The letter also stated that the defendant had already been notified of the termination of the receivership and that Madden had no entitlement to receive the rent. 43. For completeness, it is appropriate to refer to a further letter dated the 16th of April 2021 issued on behalf of the defendant which mainly concerned the issue regarding the bidding process. In that letter, the solicitors for the defendant referred to correspondence sent to the receiver on the 4th of January 2021 wherein the receiver was asked for “evidence of his title to the property.” 44. The plaintiff sought summary judgment in respect of the outstanding rent and interest, and issued a summary summons dated the 29th of April 2021. He filed an affidavit dated the 31st of August 2021 and a supplemental affidavit dated the 12th of July 2022. 45. Mr. McDonagh, on behalf of the defendant, filed an affidavit dated the 1st of December 2021 resisting summary judgment. 46. On the 10th of November 2022, Bolger J. ordered that the matter go to plenary hearing, accepting the contention advanced on behalf of the defendant that its case might be improved by discovery of documentation in relation to the appointment and discharge of the receiver. 47. A statement of claim dated the 12th of December 2022 and a defence dated the 1st of March 2023 were filed by the parties. The plaintiff swore an affidavit of discovery on the 18th of July 2023 and a further supplemental affidavit on the 7th of November 2024. 11 48. The case pleaded by the plaintiff was, in essence, that the appointment of the receiver did not displace the defendant’s obligation to discharge the rent in full, either by way of payment to the plaintiff or to the receiver as the plaintiff’s agent. Without prejudice to that position, the plaintiff also sought to rely on the agreement he had reached with Everyday wherein Everyday disclaimed any entitlement to the accrued arrears of rent. 49. The case pleaded by the defendant included a challenge to the locus standi of the plaintiff to seek the rent due and owing during the period of the receivership. The defendant required proof that the receiver acted as agent for the plaintiff in the recovery of rent and proof of the instruments of appointment and discharge of the receiver and the plaintiff’s entitlement to rely on them. Without prejudice to that position, it was also pleaded that the rights contended for by the plaintiff in the lease were extinguished once the premises was sold. 50. Further written submissions were filed by the parties in advance of the plenary hearing. 51. One of the arguments advanced by the defendant in the written submissions was that there had been an informal abatement of rent and, as a result, the doctrine of promissory estoppel applied. The defendant paid half the rent once the business reopened after the easing of COVID-19 restrictions, and it was argued that this reduced rent was acceptable to the receiver and paid by the defendant accordingly. 52. This was not an argument pleaded by the defendant, albeit it was a position advanced in the correspondence referred to above. 12 The Case at Hearing 53. At the outset of the hearing, a number of concessions were made by counsel for the defendant which were helpful in terms of narrowing the issues to be determined. 54. It was conceded that there was unpaid rent in the sum of €124,502.72. 55. It was conceded that no issue arose in respect of the plaintiff’s title to the premises and he was not required to prove the terms of the lease. 56. It was also indicated that the defendant would not attempt to meet the case on the basis of the promissory estoppel argument. This remained a controversial aspect of the case as counsel for the plaintiff submitted that this argument should never have been advanced at all. I will return to this topic. 57. Counsel for the plaintiff confirmed that the plaintiff was not seeking a claim to interest on a compound or penalty interest basis. 58. During the hearing, it was agreed that the applicable interest rate was 13.25% (€87,999.00), in the event that the plaintiff was entitled to recover. 59. The plaintiff gave evidence on the 9th of December 2025 and confirmed the personal and business history referred to above. He also identified the documents evidencing the agreements referred to. 13 60. The plaintiff referred to an occasion in 2009 where a request was made on behalf of the defendant for a rent reduction. After that request was rejected, he said that the defendant continued to pay rent, but at half the applicable rate. This resulted in proceedings being issued against the defendant. That dispute was resolved in 2011. 61. In relation to the agreement reached with Everyday, he confirmed the payment of the agreed settlement, referred to above, and said that it was his understanding of the agreement that he was entitled to “go after” whatever monies were outstanding. 62. He confirmed that he did pursue the outstanding rent through his solicitor but had not received anything. 63. Under cross-examination, he confirmed that the request for a rent reduction in 2009 came after the premises had been damaged in a fire, requiring substantial repairs. He expressly rejected the suggestion that he had been asked by Mr. McDonagh to contribute to the cost of those repairs and had refused. He said that the only occasion on which he had actually spoken to Mr. McDonagh was in 1993, when the defendant opened their business on the premises. 64. He was cross-examined about the bidding process, the settlement and the involvement of his financial adviser, Mr. Tom O’Connor, with Linkgroup, the agents for Everyday. 65. Email correspondence was opened showing discussions between Mr. O’Connor and Linkgroup in relation to the proposed sale, which included reference to the outstanding rent that should have been paid to the receiver. An email dated the 30th of November 14 2020 from Mr. O’Connor to Linkgroup, in the context of an imminent exchange of contracts, requested a follow-up to ensure that the receiver had collected the arrears. 66. It was put to, and accepted by, the plaintiff that the receiver never issued proceedings for the arrears of rent. 67. While some time was spent on this topic, for the reasons explained below I do not regard this issue as a matter of significance in relation to the matters that require to be determined. 68. The thrust of this part of the cross-examination was to suggest that up until the end of 2020, the correspondence showed that the plaintiff and the parties he was negotiating with proceeded on the basis that it was for the receiver to collect the rent. The plaintiff’s response to this was, in essence, “the receiver was appointed to collect the rents on behalf of me.” 69. In a similar vein, an email dated the 10th of December 2020 to Mr. O’Connor in relation to the settlement negotiations showed that Linkgroup rejected the suggestion that the arrears of rent were to be deducted from the amount owed by the plaintiff. The email went on to say: “For clarity once the Receiver is discharged and the full €2.5m paid, the Receiver will not be taking any further action on the rental arrears. It will be at the discretion of your client or the new landlord to pursue the tenant for the arrears.” 15 70. It was suggested that this showed that the receiver was “washing his hands of the arrears.” The plaintiff insisted that the agreement he reached with the receiver post- dated this email. 71. An undated draft deed of settlement signed by the plaintiff was shown to him and he accepted that it did not contain clause 4.1.5. 72. He accepted that the receiver himself was not a party to the final deed of settlement and release, which did contain that clause. 73. In relation to the sale of the premises, the plaintiff insisted that there had been a ‘for sale’ sign outside the premises between 2016 and 2018 and again in 2020, and that the defendant had expressed no interest in purchasing the premises. He said that by the time he became aware of any expression of interest by the defendant, he had already agreed to sell the premises to another party. 74. It was put to the plaintiff that he was paid rent directly, which he then accounted for to the receiver. He replied that he had never received any rent during the relevant period, either from the receiver or directly from the defendant. However, his grounding affidavit in the application for summary judgment did contain the following averment: “On occasion, the partial rental payments that were made by the Defendant were paid directly to me, in which event I forwarded the monies received to the receiver. On other occasions on which partial payment was made, the Defendant paid half the monthly rent to the receiver directly.” 16 75. When asked about this averment, he said that this was incorrect and that he was absolutely sure that no rent had ever been paid directly to him. While it was initially suggested to the plaintiff that the averment represented what had actually happened, counsel for the defendant properly clarified that this was not so and it was accepted that rent was not paid directly to him during the relevant period. It was acknowledged that his evidence in that regard was correct, but that his affidavit was in error. 76. The plaintiff then concluded his evidence but was recalled the following day to give evidence in relation to his agreement with the purchaser of the premises to discount the purchase price by the value of the rent due for March 2021. Documentation was produced in this regard and counsel for the defendant conceded that this was not in dispute. 77. Having regard to the various concessions made during the hearing, the plaintiff called no further witnesses. 78. The defendant called Mr. Michael Feehan, a commercial manager within the defendant company. He joined the company in 2019. His evidence largely centered on the issues relating to the sale of the premises. 79. Mr. Feehan said that he became aware of the premises being on the market in February 2020. He contacted the auctioneer and was told that the asking price was €2.4 million. He said that he expressed an interest in the premises on behalf of the defendant and later discussed the matter with Mr. McDonagh. 17 80. Mr. Feehan said that he had some further contact with the auctioneer and learned of an American interest in the premises. He said that at some point, which he timed as being later in the “lockdown”, he spoke to the auctioneer again and, in relation to the American interest, was told that nothing would be happening with the sale at that point. This appeared to be because of restrictions arising out of the COVID-19 pandemic. 81. He said that he spoke to the auctioneer again in November 2020 and was told that the premises had been sold. He said that this left him “a little bit shocked” and that he immediately informed Mr. McDonagh of this development. 82. Under cross-examination, Mr. Feehan said that, notwithstanding his communications with the auctioneer, the defendant never made an offer to purchase the premises. He suggested that the defendant’s approach was somewhat different from what might have been their normal commercial strategy because of the COVID-19 restrictions and the pandemic’s impact on business generally. 83. He said that he was not involved in any of the correspondence which subsequently issued on behalf of the defendant to Everyday and the receiver complaining about the bidding process. He also said that he had no involvement with the decision not to pay rent or to pay it at a reduced rate. He did accept, in principle, that selling a commercial property with a tenant who is defaulting on their obligations is a more difficult proposition than otherwise. 18 84. Counsel for the plaintiff suggested to him that the decision to stop paying rent and to reduce the payment of rent was part of a plan to disrupt the sale of the premises. He replied, “I don’t think so, no.” 85. Mr. Pat McDonagh, managing director of the defendant company, was then called. He described the cost of the damage caused by the fire in 2009 and his subsequent request for a reduction in rent. 86. When counsel for the defendant asked whether he had received a rent reduction at that time, he replied, “I think we stopped paying rent for a while and then paid it back later on.” 87. He described the difficulties experienced by the company during the pandemic and said that the Supermac’s outlet on High Street was closed for approximately two months. In relation to the national picture, he said that the defendant had negotiated rent variations with a number of landlords across the country. 88. Mr. McDonagh was taken through the correspondence in relation to his request for a rent reduction in respect of the premises and the bidding process. 89. By letter dated the 24th of June 2020, he sought a 50% rent reduction. Mr. McDonagh could not recall when he found out that a receiver had been appointed and the letter appeared to be addressed “To Whom It May Concern.” 19 90. He acknowledged correspondence dated the 25th of November 2020 from Madden, on behalf of the receiver, demanding payment of the arrears of rent. 91. He was shown the undated letter written by him and sent directly to the receiver complaining about the bidding process, warning of litigation and expressing an intention to make a complaint to the Companies Registration Office and the Competition Authority. He maintained that the defendant had been excluded from the bidding process and that normally one would expect to hear back from an auctioneer when there is a bid. 92. Mr. McDonagh was also shown correspondence from the solicitors for the receiver rejecting his assertions. He said that this correspondence did not give him any “comfort” in relation to his desire to bid for the premises and, thereafter, he issued proceedings seeking an injunction restraining the sale. 93. Mr. McDonagh maintained that “we were deprived of the opportunity to bid on the premises.” He also said that the defendant had sufficient finances to purchase the premises. 94. The following exchange with counsel then took place: “Q. So, just finally, Mr. McDonagh, when the property was sold and you were informed that it had been sold to the investors, you were asked to pay the rent, the arrears of rent to Mr. Duggan. And why did you not -- why did you decide not to pay the rent to him? A. We were never asked to pay the rent to Mr. Duggan. 20 Q. There was a demand letter -- A. There was a demand letter from Mr. Duggan’s solicitors. Q. Yes, that’s right, yeah. A. But not from the receiver. Q. That’s correct. And -- A. So I understood, if the receiver still was in charge, which I hear now today he wasn’t, he was discharged from it, he would be the one to pay the rent to. And that's who we were paying the rent to up to that. We never got any notification from the receiver or Beauchamps, whoever was acting for the receiver, to pay the rent to anybody else. Q. Including Mr. Duggan? A. Including Mr. Duggan.” 95. He said that he had received earlier correspondence through Madden indicating that the rent was to be paid to the receiver. 96. He confirmed that the new owners of the premises had to issue proceedings for non- payment of rent, but that this matter had now resolved. 97. At the outset of his cross-examination, Mr. McDonagh accepted that neither the receiver nor Madden had ever agreed to a rent reduction. He also accepted that the defendant had been in default in respect of rent payments before he sought a rent reduction by letter dated the 24th of June 2020. 21 98. Mr. McDonagh was pressed on why a letter from his solicitors dated the 6th of April 2021 had been sent to the plaintiff suggesting that Madden had in fact agreed to an accommodation regarding the amount of rent payments. No satisfactory explanation was offered. Mr. McDonagh was unsure whether an instruction had been given to that effect but accepted that this was not true. 99. Counsel for the plaintiff put it to Mr. McDonagh that: “Supermacs is sitting and has for the last four to five years been sitting on almost €125,000 of money to which, whatever about anyone else, Supermacs is not entitled. Is that right?” To which Mr. McDonagh answered: “That is 100% correct.” 100. Mr. McDonagh was challenged in relation to averments in his affidavit, sworn in the course of the summary judgment proceedings, to the effect that he refuted the allegation that the defendant was in breach of its obligations under the lease and/or that the defendant had failed, refused or neglected to discharge the rent due and owing. He was also challenged in relation to his averment that, without prejudice to his objection to the locus standi of the plaintiff to advance the matter, it was denied that the defendant owes the amount alleged or any amount thereof. 101. Mr. McDonagh’s explanation for this was, initially, difficult to understand. He returned again to the suggestion that he had been “deprived” of the opportunity to purchase the premises and that this had caused him to question whether he could trust the parties 22 involved in making decisions in that regard, which he thought might include the receiver or Everyday. 102. He said that he thought that the receiver was selling the premises and that he did not know until the first day of the hearing that it was in fact the plaintiff who was selling it. He said that: “… this whole thing is a bit of a shambles, as I say. At the end of the day the money is owed to somebody, we didn’t know who it was owed to.” 103. The following exchange with counsel then took place: “Q. Why aren’t you paying the money to Mr. Duggan? A. Well, I’ll be guided by my barristers and legal team as to who the money should be paid to. Because we still don’t know whether it’s the receiver or whether it’s Mr. Duggan is entitled to the money. Q. Well, are you saying to the Court that if you were satisfied that the money was owed to the receiver, you’d pay the receiver? Is that what you’re saying? A. That’s -- it depends on what my legal team advise me. If it is the receiver, I’m not going to pay the money twice. … I’m going to pay the money to whoever the Court decides here today … And if the judge decides it has to go to the receiver, then so be it. If he decides it has to go to Mr. Duggan, then so be it. Q. Okay. But in theory, you accept the money is owed to someone? A. Correct. Q. And if it is your position -- and I’m not sure if it is your position now, that it’s owed to the receiver, is that what you’re saying to the Court, or are you saying you don’t know? 23 A. I’m saying I don’t know. It’s up to the judge to decide who it’s owed to.” 104. Mr. McDonagh confirmed that he had received no demand for payment from the receiver since March 2021. He also confirmed that he had not written to the receiver querying the fact that rent was being demanded by the plaintiff. 105. It was put to Mr. McDonagh that he had no intention of paying the outstanding rent to anyone, be it the plaintiff or the receiver. He responded: “Well, I’m in business quite a long time and that’s the first time I’ve been accused in a Court of not wanting to pay my dues.” 106. However, Mr. McDonagh did accept that the plaintiff had issued proceedings for non- payment of rent in 2011 and that the new owners of the premises had issued proceedings for non-payment of rent in 2021. He accepted that this case was the third set of legal proceedings in relation to non-payment of rent under this lease. 107. Mr. McDonagh insisted that the receiver had never notified the defendant that rent was to be paid to the plaintiff. He accepted that Madden, on behalf of the receiver, had made a written demand to the defendant for payment of rent on the 25th of November 2020 but could not recall if he had ever responded. He accepted that, in the following month, he went from paying half the rent to no rent. 108. Mr. McDonagh acknowledged that there was no correspondence from the defendant expressing an interest in purchasing the premises before his undated letter referred to above. He rejected the assertion by counsel that his correspondence to AIB, the receiver 24 and the solicitors for the receiver concerning the bidding process was an attempt to “put the spooks on the financial people” or to disrupt the sale. He also rejected the assertion that he was trying to exploit the financial difficulty that the plaintiff had been under. 109. No further evidence was called on behalf of the defendant. Discussion 110. Notwithstanding the somewhat involved history set out above, it seems to me that the evidential picture in relation to the core issues in the case is fairly clear. 111. In summary, the position of the parties is as follows. 112. The plaintiff submits that the appointment of a receiver to a property asset of a mortgagor has no impact on the underlying obligations of a tenant pursuant to a lease in respect of that same asset. In this case, the relevant obligation is the payment of the agreed rent. 113. In tandem with that submission, the plaintiff says that the entitlement of a receiver to act in respect of charged property or income generated by charged property does not permanently displace the entitlements and rights of the mortgagor. Therefore, if a receiver decides not to act in respect of a certain asset or income stream, the plaintiff submits that the rights of the mortgagor remain extant. 114. To put it simply in the context of this case, the receiver had the right to receive the rent during the currency of the receivership. He also had the right to sue for the outstanding 25 rent but did not do so. The plaintiff submits that, consequently, his right to recover revives upon the discharge of the receiver. 115. The position of the defendant, which had evolved by the time of the hearing, is that the essential question is whether there was an assignment of the right to collect the accrued rents to the receiver. This was described by counsel as the “starting point.” 116. If there was such an assignment to the receiver, the defendant submits that the next step is to look at the deed of discharge, which on the defendant’s case simply discharges the receiver and does nothing else. Therefore, the plaintiff lacks standing to sue for the outstanding rent. 117. The starting point for a consideration of the issues that arise in this case is the 2009 Act. 118. Section 108(2) of the 2009 Act provides that: “A receiver appointed under subsection (1) is the agent of the mortgagor, who is solely responsible for the receiver’s acts or defaults, unless the mortgage provides otherwise.” 119. Subsection (3) sets out a number of powers that the receiver may exercise in the performance of their functions: “(a) demand and recover all the income to which the appointment relates, by action or otherwise, in the name either of the mortgagor or mortgagee, to the full extent of the estate or interest which the mortgagor could dispose of, (b) give effectual receipts accordingly for such income, 26 (c) exercise any powers delegated by the mortgagee or other person to the receiver.” 120. In relation to the receipt of monies by a receiver, section 109 provides that: “(1) Subject to section 110(4), the receiver shall apply all money received in the following order– (a) in discharge of all rates, rents, taxes and other outgoings affecting the mortgaged property, (b) in discharge of all annual sums or other payments, and the interest on all principal sums, which have priority to the mortgage under which the receiver is appointed, (c) in payment of the receiver’s commission, (d) in payment of premiums on insurance, if any, payable under this Chapter or the mortgage, (e) in defraying the cost of repairs as directed in writing by the mortgagee, (f) in payment of interest accruing due in respect of any principal sum due under the mortgage, (g) in or towards discharge of the principal sum, if so directed in writing by the mortgagee. (2) The residue (if any) of any money so received after making the payments specified in subsection (1) shall be paid by the receiver to the person who, but for the possession of the receiver, would have been entitled to receive that money or who is otherwise entitled to the mortgaged property.” 27 121. It is clear, therefore, that if the receiver exercises his right to collect rent, the rent received must be applied in a particular order. Section 109(2) seems to me to be a particularly important provision in the context of the issues raised as it provides that any residue, after the discharge of expenses, must be paid to the mortgagor. It is also clear that the receiver is given the power to demand and recover all income in respect of the mortgaged property to which his appointment relates, but that there is nothing requiring him to exercise that power. 122. The plaintiff submits that his contractual arrangement with the defendant always subsisted during the relevant period. The plaintiff says that the receiver was effectively “stepping into [his] shoes” when it came to exercising the power to collect the rent from the defendant. While the receiver demanded payment of the outstanding rent, he did not sue for it. 123. The plaintiff argues that the receiver did not receive the outstanding rent because the defendant simply refused to pay it, and that there was never anything in the arrangements concerning the appointment of a receiver that altered the defendant’s fundamental contractual obligation to pay the rent. 124. In that regard, the plaintiff relies on a decision of the English Court of Appeal in Newhart Developments Ltd v. Co-Operative Commercial Bank Ltd [1978] Q.B. 814. 125. This was a case where the plaintiff company issued proceedings against a bank for withdrawal of financial support for a property development scheme, in breach of 28 contract, during the currency of a receivership. The bank had appointed the receiver under a mortgage debenture. An application was brought to set the proceedings aside because they had been issued without the consent of the receiver who, it was argued, would have been entitled to the proceeds of the action. 126. In reversing the decision to set aside the proceedings, the English Court of Appeal found that the action did not threaten the interests of the debenture holders and even though the directors could not dispose of the assets subject to the charge, they had a duty to exploit them for the benefit of the company. 127. The plaintiff relies on a passage where Shaw L.J. held: “One has got to see what the function of the receiver is. It is not, of course, to wind up the company. It is perhaps interesting to note in passing that when a liquidator is appointed, certainly in a winding up by the court, the powers of the directors immediately cease by statutory provision. There is no such provision in relation to the appointment of a receiver, whose duty it is to protect the interests of the mortgagee or debenture holders, as the case may be. In so far as it is requisite and necessary for him, in the course of his dealing with the assets of the company, bringing them in and realising them, and so on, to bring actions as well, he is empowered to do so by the debenture trust deed in the name of the company. That makes it possible for him to institute such proceedings without exposing himself to the risk of a liability for costs if those proceedings should fail. But the provisions in the debenture trust deed giving him that power is an enabling provision which invests him with the capacity to bring an action in the name of the company. It does not divest the directors of the company of their 29 power, as the governing body of the company, of instituting proceedings in a situation where so doing does not in any way impinge prejudicially upon the position of the debenture holders by threatening or imperilling the assets which are subject to the charge.” 128. Shaw L.J. also remarked: “If in the exercise of his discretion he chooses to ignore some asset such as a right of action, or decides that it would be unprofitable from the point of view of the debenture holders to pursue it, there is nothing in any authority which has been cited to us which suggests that it is not then open to the directors of the company to pursue that right of action if they think it would be in the interests of the company. Indeed, in my view, it would be incumbent on them to do so, because notwithstanding that the debenture holders have got the right to be satisfied out of the assets subject to the charge, other creditors are entitled to expect that those concerned with the management of the company should exercise their best efforts to ensure that, when the time comes, they too will find themselves in the position that there is a fund available to pay them, if not in full, at least something of what they are owed.” 129. The English Court of Appeal found unpersuasive the argument that the proceedings should be set aside because it was the receiver who would be entitled to the proceeds. On the contrary, the court found that this provided an opportunity for the receiver, if the plaintiff’s action should be successful, to claim the proceeds so far as it may be necessary to discharge the claims of the debenture holders. 30 130. The defendant submitted that Newhart is of no assistance to the plaintiff, even as a general principle, because it was a company law case and that it was “well accepted” that directors of a company have residual powers when a receiver is appointed. It was submitted that the plaintiff in this case is an individual rather than a company and that this was a rent mortgage receivership, which is “a creature of statute.” 131. The plaintiff also relies on Chuan Hui v. K Group Holdings Inc. [2021] 1 WLR 5981, another decision of the English Court of Appeal. This case concerned statutory ‘managers’ appointed under the Landlord and Tenant Act 1987. The plaintiff contended that these were, in effect, a form of statutory receiver in landlord and tenant situations. In that case, the court held that the appointment of a manager under the Act did not have the effect of altering the underlying contractual relationship between landlord and tenant. 132. The plaintiff emphasises two passages in particular from that judgment. At paragraph 56, Henderson L.J. commented: “… The important point, in my judgment, is that the provisions contained in an order made under section 24 of the 1987 Act are superimposed on the existing contractual framework of the lease, but the underlying contractual rights and obligations of the parties remain in place, subject to the terms of the management order, and they are not permanently disapplied or modified. The Upper Tribunal was in my view substantially correct to say, at [53]: ‘The imposition of a Management Order does not displace the lease covenants and the lessees remain bound by them.’” 31 133. And at paragraph 58, Henderson L.J. continued: “… Once it is appreciated that the underlying contractual framework of the Leases remained in place during the management period, I see no difficulty in concluding that the right to sue for arrears automatically revested in the Maintenance Trustee upon the termination of Mr Watson’s term of office as manager. During his tenure, his right to recover arrears of service charge under the Leases had vested in him under the combined effect of the 2011 and 2012 Orders, but once his powers had lapsed on expiry of the period, without recovery by him of the arrears, there was no obstacle to the Maintenance Trustee seeking to enforce its right to them under the Leases by action in the County Court in the usual way. That is what the Maintenance Trustee has done in the present case, relying on the Lessees’ covenants in the Leases and the alleged failure by the Lessees to pay the relevant sums as and when they fell due.” 134. While the factual background of the case is very different, the plaintiff argued that the underlying logic is unimpeachable and transferrable to the facts in issue in these proceedings. The plaintiff said that, in essence, the defendant is seeking to benefit from a “windfall” to which it is not entitled. 135. The defendant submitted that Chuan Hui is a very long, fact-specific case emanating from the Land Tribunal and is of no real assistance in relation to the issues in this case. 136. The plaintiff also submits that the agreement he entered into with Everyday plainly involved the lender accepting the settlement sum in full and final settlement of the 32 secured liabilities and that, therefore, the agreement reached amounted to a full and final release of the plaintiff from his indebtedness to Everyday. 137. That agreement, which on the evidence was honoured by all sides, also provided that the lender would, at the sole cost of the plaintiff, co-operate with and facilitate, to the extent reasonably within its capacity to do so, the plaintiff in their pursuance of arrears, if any, of outstanding rent payable in respect of the premises. It is submitted that this is factually significant insofar as it might be suggested that the plaintiff is not the appropriate party to sue for the outstanding rent. 138. The defendant relies primarily on the case of An Post v. Harrington [2019] IEHC 438 where, it was submitted, the High Court dealt with documents that were similarly worded to the ones at issue here. 139. The first thing to note about An Post is that it was an interpleader action (see Order 57 of the Rules of the Superior Courts). 140. An Post were tenants in units owned by the first two defendants, whose secured loans with Anglo Irish Bank were sold to Gulland Property Finance DAC, who subsequently appointed the receiver, the third named defendant. 141. The position of An Post was that it wished to continue to pay rent pursuant to its commercial lease but did not want to take the risk of paying rent to either the Harringtons or Ms. O’Dwyer (or a previously appointed receiver) and then find itself exposed to paying the same rent again. Similarly, An Post did not want to retain the rent 33 and expose itself to any action that might derive from non-payment. Therefore, it commenced the interpleader action and paid the money into court. That money was calculated on foot of the rental obligations in the lease. 142. The receiver’s claim was in respect of rent payments from her appointment on the 24th of February 2017 until her discharge on the 31st of July 2018. 143. Baker J. expressly said at paragraph 6: “… This judgment is directed to the single question of her entitlement to receive rents during her period of office.” 144. The operative part of the deed of discharge in that case reads: “Gulland hereby discharges and releases the Receiver from her receivership and from all her duties and responsibilities as receiver under the Deed of Appointment as and from 3pm on the 31st July 2018.” 145. Baker J. held that the plain words of the deed of discharge had: “… the clear effect of unconditionally removing from Ms O’Dwyer all duties and responsibilities and all powers as receiver over the Harringtons’ lands as and from the time and date specified.” 146. Baker J. rejected the proposition that a right on the part of a receiver to remuneration and expenses in bringing a receivership to an end post-discharge (see Glatt v. Sinclair [2013] 1 WLR 3602) was a useful analogy in respect to the substantive right of a 34 receiver to collect accrued rents. The right to receive rents is vested by a deed of appointment and may be removed by a deed of discharge. 147. Counsel for the defendant submitted that the argument advanced by the receiver in An Post was significant. The receiver had argued that her discharge from her position as receiver was prospective in effect and that she was entitled to the benefit of any accrued rights until she was formally discharged. It was argued that the right to claim rents up to the date of discharge was not lost by the discharge. It was submitted that Baker J. was clear that: “The starting point for the analysis must be the Deed of Discharge of 31 July 2018 by which Gulland discharged the receiver.” 148. The defendant submitted that the deed in this case performs a similar function in discharging the receiver from: “all his duties, responsibilities and liabilities incurred in respect of the Discharged Assets under and by virtue of the Deed of Appointment.” 149. Counsel submitted that the defendant comes “within An Post” and that the deed between Everyday and the receiver only discharged the receiver. On that basis, it was submitted that there had to be an assignment of the vested rights by the receiver “to divest the receiver of the right to the accrued rents.” Counsel put it bluntly that a single sentence could have achieved this in the deed of discharge, but it was not done. 150. It was further argued that the fact that the lender purported to disclaim any legal or equitable right in respect of the arrears of rent could not amount to an assignment by 35 the receiver, who is a separate entity. As counsel put it, however “unpalatable” it might seem, the receiver still has the right to sue for the arrears of rent and the plaintiff does not. 151. Counsel for the defendant also referred to the case of In Re Ronan [2013] IEHC 386, which was considered by Baker J. in An Post. That case concerned a statutory receivership under the provisions of the National Asset Management Agency Act 2009 (“the NAMA Act 2009”). The NAMA Act 2009 gave the receiver the same powers, rights and obligations that a receiver has under the Companies Acts. 152. The receiver in that case brought an application for directions in relation to a number of issues, to include the question of his entitlement to receive arrears of rent which had accrued in respect of certain properties prior to his appointment. In evidence before the court, the receiver averred that legal representatives for the relevant borrowers had stated that the borrowers were entitled to all of the rents arising prior to his appointment. 153. Counsel for the defendant submitted that the issue in Ronan was a “mirror image” of the facts in An Post, in the sense that the rents in An Post accrued after the receiver’s appointment, who was then discharged, whereas the rents in Ronan accrued before the appointment of the receiver, who was still entitled to receive them. 154. At paragraph 21, Laffoy J. said: “It is clear, as a matter of law, that a receiver is entitled to arrears of rent out of the assets over which he is appointed which have accrued prior to his appointment, but which are unpaid. Counsel for the Receiver referred the Court 36 to the following passage from Picarda on The Law Relating to Receivers, Managers and Administrators (4th Ed.) at p. 444: ‘A receiver of rents is entitled to all arrears of rent unpaid when the order appointing him is made, and the tenant will be ordered to pay those arrears even though the tenant has not attorned to the receiver.’ All of the authorities cited by Picarda for the foregoing proposition bear it out. The most recent of the authorities is an Irish authority: Crawford v. Annaly (1891) 27 LR Ir. 523. There, Porter M.R. stated (at p. 529): ‘. . . it is a principle of this Court, recognised in the case of Hollier v. Hedges, that a receiver is entitled to collect and receive all arrears, subject of course to the limitation, that they are arrears of rent belonging to the estate over which he is appointed.’” 155. Laffoy J. went on to say that, in circumstances where the arrears of rent belonged to the estate over which the receiver was appointed, the receiver was entitled to the arrears and, furthermore, was entitled to apply the arrears in the same manner as he was entitled to apply the rents which accrued since his appointment. 156. I think it is important to observe that in Ronan, there appeared to be very little legal argument, if any, in respect of the issues which arise in this case. Certain respondents did not enter an appearance and/or indicated that there was no objection to the receiver’s application. The sole respondent who did file an affidavit, made a submission acknowledging that the receiver could receive arrears of rent which accrued before his appointment, but had a different view as to how the monies were to be applied vis-à- vis the different liabilities. 37 157. I also note that a statutory receiver appointed pursuant to the provisions of the NAMA Act 2009 is given power under paragraph 34 of schedule 1: “To exercise in relation to a secured asset all the rights, powers and authorities that he or she could exercise if he or she were the absolute beneficial owner of the secured asset.” 158. The plaintiff submitted that a careful consideration of An Post does not support what is being urged on behalf of the defendant. 159. The plaintiff argued that an important factual element in An Post is that the receiver was appointed on the 24th of February 2017 and discharged on the 31st of July 2018. She was then reappointed on the 8th of August 2018. Counsel for the plaintiff submitted that this is a crucial element on the facts of that case and that the court’s conclusion that the receiver had the right to recover arrears of rent was based on the receiver’s reappointment, not that she had an entitlement to recover arrears of rent as a discharged receiver. 160. Counsel for the plaintiff submitted that “the elephant in the room” is that the receiver is making no such claim to a right to receive the arrears in this case. 161. In relation to the interest element of the claim, the plaintiff’s position is that the penal interest clause was not invoked on his behalf and that the claim was for interest as set out in the demise i.e., the prevailing Bank of Ireland interest rate for an unsecured overdraft plus 2%. 38 162. The defendant says that the plaintiff did in fact make a claim for penal/compound interest up to the opening of the case and, in that regard, makes reference to the plaintiff’s supplemental affidavit dated the 7th of November 2024 which referred to an interest rate of 20% and where he averred that: “… it is unclear as to whether the rate of 20% per annum is by way of simple interest or compound interest” 163. Counsel for the plaintiff indicated that the beginning and end of the claim for interest is the statement of claim, where the interest rate above is clearly pleaded, and disputed the evidential value of the affidavit, which was sworn after the matter was sent for plenary hearing. 164. On making an enquiry during the hearing, I was asked to disregard certain affidavits sworn for the summary judgment process which had been included in the papers, which strictly ought not to have been included. For the avoidance of doubt, I have completely disregarded an affidavit sworn by the receiver on behalf of the plaintiff, but not listed in the schedule of affidavits attached to the order of Bolger J. It was agreed that the affidavits of the principal witnesses could, however, be deployed in cross-examination. 165. After the hearing had concluded, the Court received correspondence from the solicitors for the plaintiff dated the 16th of March 2026 indicating that a number of emails which had been furnished to the Court were not properly in evidence, and that this “is an agreed position between the parties.” While this is less than satisfactory, I have also disregarded those communications. 39 166. On the final day of hearing, counsel for the plaintiff asked the Court to consider making an award of compensatory damages, in line with the well-known principles set out by the Supreme Court in Conway v. INTO [1991] 2 I.R. 305, to “reflect aspects of the defence approach in the matter.” 167. Finlay C.J. set out the principles as follows: “… In respect of damages for tort or for breach of a constitutional right, three headings of damage in Irish law are, in my view, potentially relevant to any particular case. They are: (1) Ordinary compensatory damages being sums calculated to recompense a wronged plaintiff for physical injury, mental distress, anxiety, deprivation of convenience, or other harmful effects of a wrongful act and/or for monies lost or to be lost and/or expenses incurred or to be incurred by reason of the commission of the wrongful act. (2) Aggravated damages, being compensatory damages increased by reason of: (a) the manner in which the wrong was committed, involving such elements as oppressiveness, arrogance or outrage, or (b) the conduct of the wrongdoer after the commission of the wrong, such as a refusal to apologise or to ameliorate the harm done or the making of threats to repeat the wrong, or 40 (c) conduct of the wrongdoer and/or his representatives in the defence of the claim of the wronged plaintiff, up to and including the trial of the action. Such a list of the circumstances which may aggravate compensatory damages until they can properly be classified as aggravated damages is not intended to be in any way finite or complete. Furthermore, the circumstances which may properly form an aggravating feature in the measurement of compensatory damages must, in many instances, be in part a recognition of the added hurt or insult to a plaintiff who has been wronged, and in part also a recognition of the cavalier or outrageous conduct of the Defendant. (3) Punitive or exemplary damages.” 168. The principles in Conway were the subject of an analysis by the Court of Appeal in Gibson v. O’Gorman [2024] IECA 142, a decision on which counsel for the plaintiff placed considerable emphasis. 169. Counsel described the defendant as a “repeat offender” of non-payment of rent, and said that he had engaged in a “strategic weaponising of payment/non-payment of rent” and wrongfully tried to disrupt the plaintiff’s sale of the premises. She referred to his approach as being one of “ducks and drakes” and underlined the initial response to the claim, which involved a suggestion of an agreed reduction in rent. This, counsel submitted, fed into the fact that legal submissions on promissory estoppel were filed, although this issue was not pursued at hearing. 41 170. It was submitted that Mr. McDonagh’s evidence that he did not know who to pay the arrears of rent to was simply not credible, particularly in circumstances where he had never sought to directly address this issue with the receiver or the solicitors for the receiver with whom he was in correspondence. Counsel also said that Mr. McDonagh’s evidence at hearing that the rent was due and owing was inconsistent with his earlier claim denying that rent was due or in arrears. 171. Counsel for the defendant resisted that application on the basis that this was a claim for arrears of rent and there was no basis for a claim for aggravated damages. It was submitted that, on a close analysis of Mr. McDonagh’s evidence, he did not concede that he had instructed his solicitors that there had been an agreement with the receiver in relation to reduced rent. He also pointed out that the settlement agreement itself had not been mentioned until the plaintiff’s supplemental affidavit. Decision 172. It seems to me that the justice of the case is overwhelmingly in favour of the plaintiff. 173. The evidence establishes beyond any doubt that the defendant contracted to pay the plaintiff rent at an agreed rate and this agreement was still in force during the relevant period. 174. The appointment of a receiver removed from the plaintiff the ability to deal with the premises and collect the rent that was due and owing, and allowed the receiver to require that the rent be paid to him, as was done. 42 175. The uncontested evidence is that the defendant was informed of the appointment of the receiver and the fact that rent was to be paid directly to an agent acting on the receiver’s behalf, rather than the plaintiff. There was never any agreement by, or on behalf of, the receiver or the plaintiff to accept a reduced rent or waive any payment of rent at any time during the relevant period. 176. During the relevant period, the defendant made a conscious decision to pay no rent or half the rent on dates when payment was due. Such rent, as was paid, was directly paid to the receiver’s agent which leaves me in no doubt as to the defendant’s understanding of the position in relation to the receivership and the continuing rent obligations pursuant to the lease. 177. The receiver made a clear demand in writing for payment of the outstanding rent from the defendant which was effectively ignored. The receiver did not take the further step of suing for the outstanding rent. 178. The defendant now accepts that it has a liability for the arrears of rent pursuant to the terms of the lease. The defendant’s position is that it does not wish to be exposed to a liability if rent is paid to the wrong person. 179. The defendant is plainly not a party to the settlement agreement and deed of release between Everyday and the plaintiff, nor is it a party to the deed of discharge agreed between Everyday and the receiver. While those agreements are not enforceable against the defendant, the evidence in relation to the terms of those agreements is clear. 43 180. The plaintiff reached an agreement with Everyday in full and final settlement of all of his outstanding debt, which involved the sale of the premises and the payment of the proceeds to Everyday. Pursuant to that agreement, Everyday have disclaimed any right to pursue outstanding arrears of rent and indicated a willingness to assist the plaintiff and provide him with information if he wished to do so. As part of that settlement, the receiver was discharged on the 2nd of March 2021. 181. The deed of discharge released the receiver from his appointment and all of his duties, responsibilities and liabilities in respect of the discharged assets. 182. There is no evidence whatsoever in this case to suggest that the receiver, or an agent acting on his behalf, has communicated with the defendant in relation to the arrears of rent since his discharge in March 2021, such as would give rise to a rational fear on the part of the defendant that it might have an ongoing liability to the receiver. Moreover, there is no evidence that the defendant corresponded with the receiver expressing such a concern at any time. 183. The eventual sale of the premises seems to me to have little or no relevance to the issues which I have to determine. However, having closely observed the witnesses in the course of the hearing, I can only conclude that the sale of the premises (or at least Mr. McDonagh’s perception that he was excluded from the bidding process) is undoubtedly the source of some animus towards the plaintiff on his part. 44 184. While any court would be reluctant to arrive at a conclusion that would be “unpalatable”, as counsel for the defendant expressed it in argument, such a conclusion cannot be avoided if the authorities compel such a result. I do not believe that they do. 185. Before turning to An Post, on which the defendant placed the most emphasis, the English Court of Appeal authorities opened to me should be considered. I agree with counsel for the defendant that Chuan Hui is of limited assistance in relation to the facts of this case. 186. However, I cannot agree that the views expressed by the English Court of Appeal in Newhart can be dismissed simply because the case involved a company rather than an individual. I am of the view that the essential rationale expressed by Shaw L.J. in his judgment is compelling and the application of that rationale is more likely to lead to a just result. 187. The distinction sought to be drawn by the defendant has a superficial appeal. I acknowledge, as I must, that directors of a company have stand-alone statutory and fiduciary obligations to the company and its shareholders, but that does not undermine the essence of the reasoning from the decision on which the plaintiff relies. 188. As Shaw L.J. put it in relation to the receiver’s discretion: “If in the exercise of his discretion he chooses to ignore some asset such as a right of action, or decides that it would be unprofitable from the point of view of the debenture holders to pursue it, there is nothing in any authority which has been cited to us which suggests that it is not then open to the directors of the 45 company to pursue that right of action if they think it would be in the interests of the company.” 189. Ignoring for a moment the question of director’s duties, it seems to me that a director could only pursue an asset or right of action, or whatever it may be, if the right to do so, which arises anterior to the appointment of the receiver, subsists thereafter. 190. The defendant’s obligation to pay rent derives from the lease. Nothing in the appointment of the receiver had the effect of varying that obligation. The obligation subsisted throughout the relevant period and is, in fact, the basis of the receiver’s right to recover once appointed. 191. It is well established that a receiver acts as agent for the mortgagor. While this is sometimes described as a ‘legal fiction’ or ‘legalism’ in circumstances where the receiver is appointed by the mortgagee, what is clear is that the essential function of the receiver is to recover and apply funds in respect of the indebtedness of the mortgagor. While this is subject to the payment of fees and expenses, which may be substantial, one cannot lose sight of the indebtedness that gives rise to the appointment. 192. This is consistent with section 109 of the 2009 Act which provides that any residual monies received after making the relevant payments shall be paid by the receiver to the person who, but for the possession of the receiver, would have been entitled to receive the money or who is otherwise entitled to the mortgaged property. This entitlement is not extinguished by the appointment of the receiver. 46 193. The mortgagor, a shareholder and a creditor may all have an interest in monies or other assets which remain unrecovered in the course of a receivership and no authority has been opened to me which supports the proposition that the mere appointment of a receiver permanently extinguishes the underlying rights that give rise to the receiver’s ability to recover in the first instance. 194. A receiver might in his discretion ignore, or choose not to vigorously pursue, an asset for any number of reasons. It may, for example, be perceived as not profitable or too costly to do so, or there may be other difficulties. It is not difficult to imagine a situation where a party owing rent might take steps to add to that perception. It appears to me to be very unjust to say that in such circumstances, after a receiver is discharged, the underlying rights of the mortgagor are permanently extinguished or are extinguished absent an express assignment from the discharged receiver. 195. There is nothing to recommend the proposition, as a matter of principle or logic, that absent an explicit reassignment by a discharged receiver, the right to recover remains with him, despite being released from his appointment. This would indeed give rise to an unjustifiable ‘windfall’ for the recalcitrant tenant or debtor. I do not believe that the authorities support such a result, still less compel it. 196. I am of the view that the defendant places more weight on the decision in An Post than it can bear. This was an interpleader action, and I queried during the hearing whether, on the evidence, this might have been the appropriate course for the defendant to take, having regard to his evidence. 47 197. However, in any event, I am of the view that the ratio in An Post is to be found in paragraph 33 where Baker J. said: “… Thus, following the appointment of Ms O’Dwyer the second Deed of Appointment, made on 8 August 2018, Ms O’Dwyer is entitled to the monies representing the payment of rent by An Post which remained unpaid to her at the date of her second appointment on 8 August 2018.” 198. Baker J. expressed this view immediately after referring to the appropriateness of the receiver relying on the decision of Laffoy J. in Ronan, where she held that the appointment of a receiver carried with it an entitlement to sue for arrears of rent which might be outstanding at the date of that receiver’s appointment. As I have already observed, that point did not appear to be in any real controversy in that case. 199. It seems to me that Baker J. in An Post was simply reaching a similar, and unremarkable, conclusion that upon the receiver’s reappointment, she was entitled to pursue rent which remained unpaid up until the date of the deed of her discharge. I disagree that the judgment stands for the proposition that absent an assignment, the mortgagor’s interests are permanently extinguished. There is nothing in the judgment which supports that view. At paragraph 22, on which the defendant places emphasis, Baker J. was simply reciting what was provided for in that particular deed of discharge regarding a subsequent deed or reappointment. 200. I do not believe that Baker J. was saying that in all circumstances, there must be an assignment by the receiver for the underlying rights of the mortgagor to be revived. 48 201. In relation to the interest claim, I am satisfied that the claim for interest is not for penal interest but is based on the Bank of Ireland rate plus 2%, as is clear from the statement of claim, which contains the following plea: “It was a further term of the Lease that in the event of the rent being in default for in excess of 21 days, interest would accrue until payment at the rate of 2% over the then Bank of Ireland Lending Rate on unsecured overdrafts. As the Defendant remains in default, interest continues to accrue.” 202. I have considered the claim for aggravated damages, which was not pleaded but was raised by counsel for the plaintiff on the final day of the hearing. I have also considered the case of Gibson carefully. 203. Gibson was, thankfully, a very unusual case on its facts. An insight into the decision in that case can be developed by reference to even a small number of the features of the case: the deliberate destruction of an original deed of transfer allegedly executed by a solicitor’s own clients without their knowledge or consent; falsifying dates on an original transfer to evade tax lawfully due; purporting to witness the signatures of his own clients by untruthfully stating that a document was executed in his presence; actively misleading his own expert; answering interrogatories in way that was knowingly untrue. 204. While the conduct of the defendant in this case was less than satisfactory, particularly in light of the now accepted evidence, I am not satisfied that this case comes close to the matters that arose in Gibson and, in the context of a claim for arrears of rent, I do not propose to make an order providing for aggravated damages. 49 205. I should also say, for completeness, that counsel for the defendant acted entirely properly in making the relevant concessions, particularly in relation to the promissory estoppel issue, and saved considerable court time in so doing. 206. The plaintiff struck me as an impressive witness. He ran a successful local business until financial pressures, the consequences of which are all too familiar to the Court, brought him to his knees. Over a long period, he engaged with his lenders and emerged from those difficulties, and remains in business employing people in the local area. He entered into an agreement with the defendant for the payment of rent for the premises and I have no hesitation in saying that the agreement should be honoured. I am also satisfied that the applicable interest rate to be applied is the rate as pleaded in the statement of claim i.e., the prevailing Bank of Ireland rate for an unsecured overdraft plus 2% 207. Having regard to the provisions of section 169 of the Legal Services Regulation Act 2015, I propose to make an order for costs in favour of the plaintiff, unless either party wishes to urge an alternative course. I will hear counsel on the precise sum due and owing for the purposes of the final order. 50