Grounds established for injunction restraining the taking possession of properties in mortgage dispute

Commercial – application for interlocutory injunction - property company got interim injunctions restraining the defendant property company from taking possession of properties – undertook that the rents and income generated by the secured properties would be held in escrow pending the determination of the proceedings - monies were advanced by Anglo Irish Bank Corporation plc to purchase the properties - first named defendant purchased the rights of Irish Bank Resolution Corporation Limited as successor to Anglo – wrote to the plaintiffs requiring that they pay all rent received from the property to the first named defendant - plaintiff was afforded 28 business days to do so otherwise the first named defendant stated that it would appoint a receiver over the property - first named defendant issued a demand for full repayment in the sum of €6,702,497.31 – receiver appointed – plaintiffs argued the true contractual obligation is to repay the debt in accordance with the amortisation schedule – argued that they have been in full compliance with the amortisation schedule – argued that the defendants are estopped - argued no representation was made to the partnership by Anglo or its successors that there was any failure to comply with the terms of the 2008 facility or that the loan was in default or that Anglo was reserving its rights in respect of the terms of the 2008 facility or seeking to rely on any non-waiver provisions in either the 2008 facility, the 2000 mortgage or the 2008 mortgage – employees of Anglo averred that Anglo would not have considered the 2008 facility to be in default – defendants argued that the proper construction of the security documents only permits the conclusion that the plaintiffs are in default of the loan agreements - no evidence to support an estoppel or a waiver - contractual provisions - legal principles governing interlocutory injunctions - status quo - plaintiffs have demonstrated that there is a fair question to be tried - adequacy of damages – Court satisfied that damages would not be an adequate remedy for the plaintiffs - plaintiffs would be in a position to pay such damages in the event of losing the substantive action - balance of convenience - balance of convenience favours maintaining the status quo and that, in the circumstances, the injunctive relief should be granted - allegation of material non-disclosure at the ex parte hearing - factors that the court should consider in deciding whether to exercise its discretion to set aside an ex parte order in the event of a material non-disclosure – court not satisfied that the failure to disclose that rental income had been received amounts to a material fact - rental income received seems to me to be pertinent only towards the urgency of the application.