Terracotta Construction Limited v Everyday Finance DAC and Anor

THE HIGH COURT [2026] IEHC 214 [Record No. 2021/5381P] BETWEEN TERRACOTTA CONSTRUCTION LIMITED PLAINTIFF AND EVERYDAY FINANCE DESIGNATED ACTIVITY COMPANY AND LUKE CHARLETON DEFENDANTS JUDGMENT of Mr Justice Jordan delivered on the 9th. day of April 2026. 1. These proceedings are related to the proceedings entitled Philip Rogers and Sinéad Rogers (plaintiffs) and Allied Irish Banks plc, Everyday Finance DAC and Luke Charlton (defendants). 2. The application for an interlocutory injunction in these proceedings was heard along with the application for an interlocutory injunction in the Rogers proceedings (Record Number 2020/1767P). The judgment in the Rogers case should be read in 2 conjunction with this judgment as the cases ran together and there is much common ground. 3. The motion for an interlocutory injunction is dated 21st. August 2025 (following an ex parte application of that date) - and was returnable to 26 August 2025. It seeks to restrain the sale of a house known as 55 Mill Race Park, Drumlish, County Longford. The auction was to take place on 27 August 2025. 4. Amongst the issues raised by the plaintiff in these proceedings – and not a feature of the Rogers case - is that the powers of a receiver, as defined in the terms and conditions of the mortgage dated 12 September 2007, do not include the power to market and sell the plaintiff’s lands. The Indenture of Mortgage dated 12 September 2007 between AIB and the plaintiff provides that any receiver shall have power to ; – “give notice to quit and to bring and to take actions or proceedings for ejectment or recovery of possession of any of the said premises on the expiration or determination or forfeiture of any tenancy or otherwise and to relet or let the said premises hereby mortgaged and charged or any part thereof…” 5. The plaintiff says that this pre-2009 mortgage did not allow the charge holder to confer upon the receiver the power to market the property for sale or to sell the property. 6. Moreover, the plaintiff points to the fact that the discovery which it obtained from Everyday in these proceedings evidences Everyday's knowledge of the above, notwithstanding which (a) the appointment was proceeded with, and (b) Everyday did empower Mr Charlton to sell the property by public auction. The plaintiff also points out that Everyday was advised by their solicitors, inter-alia, prior to the appointment of Mr Charlton, that any receiver appointed did not have the power to sell and that the receiver could only collect rent/income generated by the property. 7. The plaintiff says that Mr Charlton is in the circumstances purporting to exercise a power as receiver to sell the plaintiff's property by public auction despite not having the contractual power to do so. The plaintiff relies upon the decision in Nihill v 3 Everyday Finance DAC [2022] IEHC 484 (Dignam J at para. 50) where it was held that the plaintiff in that case had raised a fair question to be tried that the receiver was acting in excess of his powers by purporting to exercise a power of sale which he did not have under the mortgages in that case which had similar provisions. 8. The defendants concede that the argument regarding the receiver’s power of sale does, based on current authority, raise a fair issue to be tried. 9. In these circumstances the court will move to the balance of convenience and the least risk of injustice, including consideration of the adequacy of damages, and decide whether or not it is appropriate to grant the plaintiff the interlocutory injunction sought by it. 10. The plaintiff submits that the greater risk of injustice in the determination of this interlocutory application would arise if the interlocutory reliefs are refused and the plaintiff later succeeds at trial, than if the interlocutory reliefs are granted and the defendants succeed at trial. The plaintiff relies, in this regard, on the dicta of Allen J in Salmon & Anor. v Tyrrell & Anor. [2021] IEHC 6 (at para. 62) ; - “The balance is between the inevitable postponement of the exercise of the defendants, specifically Everyday’s, right to sell and the risk of extinguishment of the plaintiff's rights as owners of the land.” 11. The Salmon v Tyrrell case was a completely different situation to this in that the property in dispute was the plaintiff's family home and a 17-acre farm immediately to the east of the family home which was used as a hobby farm. The family home itself was on a large site of about ten acres or so. The plaintiffs had a construction company which got into difficulty resulting in judgment recovered against it for approximately €2.6 million. The plaintiffs were then pursued on foot of personal guarantees in respect of the company debt. The borrowing in respect of the construction of the family home was secured by a charge signed by the plaintiffs in 2000 and the borrowing for the 17- acre hobby farm was secured by a charge signed in 2002 (both charges were repaid). The core dispute between the parties in the case was whether the plaintiffs’ liability on foot of the guarantees which they signed in 2007 and 2009 was secured by 4 the charges they had signed in 2000 and 2002. On their face, the charges were for all sums due but the plaintiffs contended that the charges properly construed within the factual matrix in which they were given, extended only to the borrowings made at the time they were given, which, it was common case, had been repaid. Allen J was satisfied that the case was not, from the plaintiffs’ perspective, a commercial case and he said that he could not accept the defendant's argument that the subject lands were “non- essential assets” or that the lands could properly be seen as similar to a commercial investment property. The case is readily distinguishable from this case. 12. The plaintiff argues that where an injunction seeks to restrain an interference with a party’s property rights, an injunction is more likely to be granted and the plaintiff relies on Allied Irish Banks plc v Diamond [2012] 3 IR 549 ; - “… The courts have always been anxious to guard property rights in the context of interlocutory injunctions… The reason for that is clear. Even though there may be a sense in which it may be possible to measure the value of property lost, declining to enforce property rights on the basis that the party who has lost its property can be compensated in damages would amount to a form of implicit compulsory acquisition.” 13. Allied Irish Banks Limited v Diamond concerned a springboard injunction application in an employment law context – where Clark J did express the view that the courts are anxious to guard property rights in the context of interlocutory injunctions. The mere fact that it might be possible to put a value on property rights lost did not, of itself, mean that damages were necessarily an adequate remedy as the party concerned was entitled to its property rights instead of their value. And of course this is so - but the court has to look at the situation in the case before it and decide where the balance of justice lies while taking account of the property rights at issue. 14. The plaintiff also relies on the following dicta of Gearty J in O’Flaherty’s (Nassau Street) Limited v Setanta Centre Unlimited Company [2020] IEHC 272 ; - 5 “If the injunction is refused due to the defendant's ability to compensate the plaintiff after the fact for a breach that ought not to have taken place at all (if this easement is found to exist) such a refusal sends a dangerous message to litigants who are well resourced. The message being that money can buy a party out of any breach of the law. That is not so. As O’Donnell J commented in Merck Sharpe & Dohme, ‘while the endpoint of most civil cases is the award of damages, the interests that the law exists to protect often extend beyond the purely financial'”. 15. The factual situation which existed in the O’Flaherty’s (Nassau Street) v Setanta case is again very different to the current case. The issue in dispute concerned access to the plaintiff's commercial premises and an implied easement was asserted. The plaintiff wished to have the access route which it claimed protected by an interlocutory injunction in circumstances where the defendant was setting about construction works which would destroy the Nassau Street access. If the plaintiff succeeded in establishing at full trial that it had an implied easement then that would mean that it would be entitled to an injunction to prevent the destruction of that easement for the duration of its lease (even though it had only a few years to run). The particular circumstances of the case are apparent from para. 6.3 of the judgement where Gearty J states ; – “While many events can be monetised, it is not doing justice if this is done in every case. By that yardstick, any breach of rights could be justified after the fact by offering money. It is better to look at the law; there may be an easement here – and there is a fair question to be tried as to whether that is so – if so, the breach of that right is a breach of the lease and an infringement of property rights which the law should encourage the landlord to correct. It is not only specific to this case, it is the function of the law to uphold the contract; leases are important to society generally. Both landlords and tenants must be able to rely on their leases and must be able to enjoy their property, while respecting each other's rights.” Gearty J goes on to say ; – 6 “….In the specific circumstances of this case, where the plaintiff has traded on Nassau Street for decades, using the address in its advertising and moving from premises to premises but always with its main entrance on that street, it is not a convincing argument that the alternative access route on a quiet street, no matter how close by, is not a foreseeably problematic change to the plaintiff's business even if there were no easement in question. But in any event, if the implied easement has been created, that is the end of the matter.” The case illustrates the value of the equitable remedy of an injunction - and the fact that damages as a remedy requires consideration in the particular circumstances of each case. 16. The plaintiff also relies on McGarry v O’Brien [2017] IEHC 470 (Stewart J at para. 37) where there was a valid argument to be made that damages would be an adequate remedy for the plaintiff, as their losses were easily calculable and no doubt had been cast over the defendant's ability to pay those damages, should they arise, but the court held that ; – “The court cannot ignore that real property rights are at stake in this case. The parties are disputing, not over a piece of personalty that can be easily replicated, but over a unique piece of land. There are, of course, numerous decisions of the courts wherein damages were held to be an adequate remedy, notwithstanding that property rights in land were at stake. However, in implementing a facts based approach and assessing the evidence, the court is extremely concerned about the plaintiff's property rights in land being undermined in circumstances where serious questions subsist over the receiver's appointment and powers. On that basis, the court is satisfied the damages are not an adequate remedy.” There were particular circumstances at play in the case. It did involve residential investment properties but it was a case where there was as the Judge put it “disorder plaguing the defendant’s house”. When one looks at the facts of the case and the scale of the disorder it is not surprising that the court found that damages were not an adequate remedy - and was persuaded to grant the interlocutory injunction sought. 7 17. The plaintiff also relies on the decision in McGirr v Everyday Finance DAC [2022] IEHC 612 where the court determined that the balance of convenience lay in favour of granting an injunction. The case is touched on in the Rogers Judgment. 18. The McGirr case is very different to this case. The plaintiffs were seeking to restrain the sale of two buy to let properties which remained in a portfolio of ten properties which they had purchased with finance provided by AIB plc/AIB Mortgage Bank – with the mortgages secured as first fixed charges on those properties. The court has already mentioned the agency argument, which featured prominently in the case, in the Rogers Judgment. It is of relevance that eight of the ten properties in the portfolio had already been sold by the defendants. It is of relevance that the plaintiffs complained about the lack of information given to them by AIB or the defendants concerning those eight properties prior to their sale. They also complained about the manner in which those properties were marketed and sold by online auction, which the plaintiffs submitted did not achieve proper market value for those properties and thus failed to properly reduce the plaintiff's indebtedness. The plaintiffs were according to the defendants still indebted to the first named defendant in the sum of approximately €1.3m despite the sale of the properties. On this, the plaintiffs said that the market value of the remaining two properties, if correctly marketed and sold by private treaty and with vacant possession, should between them make somewhere in the region of €900,000. They argued that the apparent shortfall in the sum of €400,000 would be fully accounted for if all of the properties had been marketed and sold so as to achieve their full market value. While there was a dispute about the correct level of indebtedness there was agreement between the parties that monies were due by the plaintiffs under the facilities. Thus, in considering the grant of the injunction the court was considering whether or not the remaining two properties could be sold or not pending the determination of the proceedings. It is clear that Roberts J was cognisant of the plaintiffs’ real concern/fear that the sales of the two properties would not realise the full market value for the properties and that the plaintiffs would then be left in the unenviable position of facing a shortfall on buy to let loans even after all of the secured properties had been sold. The court was satisfied that there had been a less than satisfactory flow of information up to 8 that point in time between the parties and the court believed that refusing the injunction could perpetuate those issues and that the sale of the remaining properties could make the trial of the action more difficult to expedite as the defendants would then have sold all of the secured properties. In all of the circumstances, although finely balanced, the court believed that granting the injunction minimised the overall risk of injustice in the case. 19. The plaintiff also relies on the judgment of Cregan J in Monkswood Investments Limited v Everyday Finance DAC [2023] IEHC 77, a case concerning a corporate plaintiff where the plaintiff's interest was, as Mr Charlton put it in his affidavit, “purely monetary”. The plaintiff points out that the court found that the balance of justice favoured granting an injunction, inter-alia because, “…given that this is a dispute about whether the first three defendants have any legal or equitable title to sell the lands, that damages would not be an adequate remedy for the plaintiff, if the injunction were to be refused and the plaintiff were successful at trial” [para. 63] and “…any such sale which might be entered into by Everyday Finance or its receivers could cause significant prejudice to a purchaser as their title to land might subsequently be compromised” [para. 67] . 20. In the Monkswood Investments case the fundamental issue was that the plaintiff company alleged that it never entered into any mortgage or charge in favour of AIB or AIB Mortgage Bank over the property which was the subject matter of the proceedings. It was alleged that documents purporting to be mortgages or charges given by the company were forgeries. It is the position that Cregan J was satisfied in the case that, given that it was a dispute about whether the first three defendants had any legal or equitable title to sell the lands, damages would not be an adequate remedy for the plaintiff if the injunction was refused and the plaintiff was successful at trial. He was also of the view that other factors did come into play and had to be considered by the court and weighed in the balance, namely ; – 9 (i) that the plaintiff disputed that it created any mortgage or charge over the lands in favour of the AIB or its successor; (ii) the fact that directors of the plaintiff alleged (and had provided a report of a handwriting expert to backup up that view) that their signatures on mortgages and deeds of charge were forged ; and (iii) that therefore the right of the defendants to sell the property was in dispute. In his view, the circumstances in which the title to the land was disputed was a decisive consideration in assessing the balance of justice and in granting an injunction to restrain the defendants from taking any steps to sell the land until these matters had been resolved. Moreover, he said, any such sale which might be entered into by Everyday Finance or its receivers could cause significant prejudice to a purchaser as to their title. It is readily apparent that the case had very particular features and is readily distinguishable from this case. 21. The plaintiff says that the defendants have not evidenced any prejudice which would be caused to them in the event of the injunction being granted and that there is no evidence that a delayed sale would realise a lesser sale price. Furthermore, the plaintiff has a tenant in situ in the dwelling house in question so the defendants are not incurring the cost of maintaining the property and it is not lying vacant or becoming dilapidated. 22. The plaintiff points out that in Thompson v Tennant [2020] IEHC 594 Butler J, in finding that the balance of convenience lay in favour of granting an injunction, relied inter alia on the defendant's failure to give any estimate as to the likely losses to be sustained by it by virtue of any delay in the realisation of its security as a result of the proceeding. In so holding, the court emphasised that the defendants in that case ; - “…had not given any estimate as to the likely losses to be sustained by virtue of any delay in the realisation of its security as a result of these proceedings, nor, in circumstances where it holds a charge over two of the properties owned by the first plaintiff, had they given any indication of the value of those properties, 10 nor the extent of the first plaintiff's indebtedness to Promontoria relative to that value (at para. 39).” 23. In Thomson v Tennant the circumstances were very different to the circumstances in this case. A feature of the case was that the plaintiffs were running a creche business in the premises. Apart from the financial losses which would arise if the receiver took possession of the property there would be a significant degree of inconvenience for the children attending the creche and the parents of those children in sourcing alternative childcare which might not be available in the locality. Additionally, the staff currently employed by the plaintiffs at that location would lose their jobs. The court was advised that 55 children or so attended the creche and that it employed some 16 members of staff. The property in question was a commercial property in which the plaintiff and the second named plaintiff ran the creche business. It appears that the first named plaintiff and her husband had entered into a lease with the second named plaintiff. It also appears that the company was paying the rent directly to the Ulster Bank and later to Promontoria. 24. In the Murphy v Launceston case [ 2017 IEHC 65] cited by the plaintiff the factual matrix was also completely different to the facts of this case. In that case the first to fifth named plaintiffs were members of the First Wood Partnership which was created in May 2000 for the purpose of investing in and managing a multi-storey car park complex including office and retail units in Dublin 2. The market value of the secured property was twice the value of the outstanding debt and the debt continued to be paid. The core of the issue in dispute between the parties was whether or not the contractual obligation was to repay the debt in accordance with an amortisation schedule – and in circumstances where the plaintiffs said that repayment was taking place in accordance with that amortisation schedule and they were therefore in full compliance. 25. The plaintiff relies on the undertaking as to damages proffered and point to the overall asset value in that regard – essentially making the point that the defendants are very well protected in this instance. 11 26. In reply the defendants refer to the classic approach which is to consider the trilogy of factors, namely, whether there is a serious issue to be tried, whether damages would be an adequate remedy for the plaintiff if denied an injunction and was to succeed at trial – and whether the balance of convenience favours the granting of an injunction. 27. On this, the defendants say that the more recent case law emphasises that in considering an interlocutory injunction application the court's chief concern should be to arrive at a result which carries with it the least risk of injustice – and that the Campus Oil principles approach should not be treated as if it was a mechanical statutory test (see O'Donnell J in Merck Sharp and Dohme v Clonmel [2019] IESC 65 at p.23). 28. The defendants point to the preference expressed by O'Donnell J in that judgment for treating the adequacy or inadequacy of damages as part of the court's consideration of the balance of convenience where, at p.28, he stated ; - “It is not simply a question of asking whether damages are an adequate remedy. As observed by Lord Diplock, in other than the simplest cases, it may always be the case that there is some element of unquantifiable damage. It is not an absolute matter: it is relative. There may be cases where both parties can be said to be likely to suffer some irreparable harm, but in one case it may be much more significant than the other. On the other hand, it is conceivable that while it can be said that one party might suffer irreparable harm if an injunction is granted or refused, as the case may be, there are nevertheless a number of other factors to apply that may tip the balance in favour of the opposing party”. 29. Insofar as the adequacy of damages is concerned the defendants submit that damages would be an adequate remedy for the plaintiff if it was refused an injunction and succeeded at trial. It points to the fact that the plaintiff is a limited company and that the property is a buy to let residential investment property. 30. The defendants rely on Ryan v Dengrove [2021] IECA 38, where at para. 62 of his judgment, Murray J stated that ; - 12 “….the authorities show that in ‘receiver – injunction’ cases involving commercial properties (and I stress the latter part of that description) the position is often adopted that in a dispute between an undertaking that has borrowed monies for wholly commercial purposes, and a secured lender who has obtained as a condition of that borrowing security over wholly commercial assets, the dispute is a commercial one, and the remedy for breach by either party of their obligations under those arrangements sounds in damages.” 31. The defendants point to the fact that the plaintiff, and its director Mr Rogers, plainly understand that damages would be an adequate remedy in respect of this commercial buy to let property. They point out that in para. 40 of the Rogers written submissions in support of the first interlocutory injunction application brought in the related Rogers proceedings, it was stated ; – “Furthermore, the interlocutory reliefs sought are only in respect of the four folios which make up Mr Rogers farmlands. The particular, profound importance of those lands to Mr Rogers has already been cited in the submissions… They are not mere commercial assets. The plaintiffs, in differentiating between the farmlands and the buy to let properties which make up the other three folios the subject matter of these proceedings, recognise that damages are an adequate remedy in respect of the buy to let properties, but urge that damages are not an adequate remedy in respect of the farmlands.” 32. The defendants submit that the same logic holds good in respect of this application and that damages are an adequate and appropriate remedy in respect of the property. 33. In supplemental submissions the plaintiff argues that the property which it seeks to restrain the sale of is not a mere commercial asset and points to Mr Rogers’ affidavit sworn on 27 February of 2026 in that regard. In that affidavit Mr Rogers avers ; – “4. I say that the plaintiff is not an actively trading company. It is owned and directed by your deponent and my wife and is, in effect, a vehicle within which the houses situated on folio MD 9774F are held and is akin to a trustee of these assets for your deponent and my wife. The houses are located in very close 13 proximity to our family home. They were constructed by your deponent and my agents and subcontractors approximately 20 years ago on land which formed part of the Rogers’ family farm. It has always been our plan that one of the houses would be provided to our son Jim and it is our intention also in more recent years that another would be provided to my wife's elderly parents, who are in the 80s and living in a remote rural location, and my wife's mother has dementia. 5. The houses were to be your deponent's pension. During the time when the plaintiff was actively trading and the houses were being constructed I did not draw a salary from the plaintiff. I am nearing 60 years of age and I have no private pension. My wife and I are living off the rental income from the properties. I'm suffering from quite profound deafness and for instance although I was present in court on 13 February last I could not hear the vast majority of what was said. My wife has also suffered from significant health issues most notably cancer which said health issues are a very significant concern to us as a couple. Given these health issues we will need access to resources going forward and our earning capacity is significantly diminished.” 34. This submission is not persuasive. It is a narrative which smacks of opportunism and an endeavour to artificially bolster support for equitable relief. It is clear that the Plaintiff and Mr and Mrs Rogers are the owners of a property portfolio with significant equity over and above the debts claimed in these and the related proceedings. 35. In favour of the plaintiff is the fact that the defendants have ample security and that they have not shown any real prejudice will occur by reason of a delayed sale. In it’s favour is the fact that there is some wisdom in having the receiver’s actual powers determined before any sale takes place. In the plaintiff's favour is the fact that it does appear from the evidence that the plaintiff's undertaking as to damages is worthwhile by reason of the total equity available to the plaintiff – and to its directors Mr & Mrs Rogers. In the plaintiff's favour is the fact that the defendants have contributed to the delay in progressing these proceedings. The defendant’s delay in relation to discovery is already mentioned. The fact that the summary summons proceedings were in being 14 for years before ultimately being dismissed for want of prosecution is relevant history in terms of the inter partes litigation. 36. Notwithstanding the submissions of the plaintiff and the evidence adduced, the court is satisfied that; – (a) The dwelling house in question is a purely commercial asset. It is owned by the company with other dwelling houses which were built as buy to let properties. (b) The property in question is let out (and so too it appears are the other dwelling houses held by the company). No rent has been received by the receiver since his appointment and it is apparent that there is little in the way of co-operation between the plaintiff and the receiver/Everyday. (c) Having regard to the limitations which the plaintiff says apply to the Receivers powers there is a certain irony in the fact that the plaintiff continues to collect the rents but makes no payments to the receiver and everyday – although the receiver’s right to receive the rents is clear. (d) The letter dated 14 August 2025 from the defendants solicitors to the plaintiff’s solicitors (in the related proceedings) was a reply to the plaintiff’s solicitors letter dated 31 July 2025 which referred to the proposed sale of the farmlands and 55 Mill Race Park. The defendants letter provided a sensible interim solution. In the letter dated 18 August 2025 to the defendants solicitors in these proceedings the plaintiff’s solicitors said they presumed the defendants were adopting the same position in this case and declining to postpone the auction. It is probable that engagement with the defendants in respect of the request made in the letter of the 14 August 2025 would have applied to the properties mentioned in both sets of proceedings (and that appears from the wording to be what the defendants had in mind). The plaintiff’s failure to engage when there was an opportunity to do so was completely unreasonable. (e) The plaintiff is significantly in debt to the defendants and is in default. There are valid charges on the properties and the plaintiff has not made any repayments for years. 15 (f) The property in question is in effect part of a portfolio of properties owned by the company and by the Rogers personally. (g) The plaintiff is guilty of culpable delay in prosecuting this action. Without repeating all of what is said in the Rogers’ judgment concerning delay the court will simply say that the plaintiff’s delay is a significant weight in favour of the defendants in the scales. (h) These proceedings (like the related proceedings) have run a protracted course since the plenary summons was issued in September 2021. The receiver was appointed in October 2019. Thus, there was pre- commencement delay and there has been delay on the part of the plaintiff since the proceedings were issued. It is quite true that the defendants contributed to the delay – and in particular insofar as discovery is concerned. Nonetheless, there is culpable delay on the part of the plaintiff in these proceedings. 37. The court has listed these considerations, and others, in the judgment in the Rogers case. Much of what is said in the Rogers judgment in that regard applies equally in this case. 38. In all of the circumstances of this case the court is satisfied that damages are an adequate remedy for the plaintiff. The court is quite satisfied that the scales tip very much in favour of the defendants when looking at the balance of convenience and the balance of justice. The adequacy of damages is not the only weight in the scales. 39. The court is satisfied that this is a purely commercial situation and dispute. All things considered, the court does not see any injustice to the plaintiff if the interlocutory reliefs sought are refused. On the other hand, the court considers that it would be unjust and inequitable to grant the interlocutory relief sought. The owner of the charge is entitled to enforce its security in order to recover the money due and it would be inequitable to fetter it doing so given the history, the behaviour of the plaintiff and the particular facts of the case. 40. The court does intend to set a timeline to hearing and give directions in that regard. It will list the case for 10.30 a.m. on 23 April 2026 and deal then with costs and 16 further orders/directions. The plaintiff and the defendants should discuss a timeline before then and endeavour to reach agreement.