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High Court grants summary judgment in amount of €9,795,180.16 to holder of securities, and an interlocutory injunction preventing borrower in default from interfering with properties which secured the borrowings the subject of the summary judgment application, on the grounds that: 1) no credible defence exists to send the judgment application to plenary hearing where it is merely asserted (contrary to the loan documentation) that there was an alleged agreement between the parties to convert the on-demand loan to one was that was not 'on' demand; and (2) notwithstanding that the applicant receiver does not hold security over the common areas of the apartment block within which the two secured apartments are located, it is arguable that the receiver has a right of way by necessity in order that it can so enforce its security against the borrower.
Application for summary judgment - application for an interlocutory injunction preventing plaintiff from interfering with receivership of certain properties securing borrowings - company controlled by plaintiff acquired rights to common areas in apartment blocks secured in favour of receiver - summary judgment granted - interlocutory injunction granted prohibiting interference with receiver's use of common areas - factual background - letters of demand sent on foot of loan facility in default - whether demand loan ceased to be on-demand lending - alleged agreement convert on-demand loan - no such averment that no agreement from defendant that nature of loans would be altered - simple acquiescence or agreement by bank to fundamentally alter terms of loan is not a credible defence - 'without prejudice' to demand nature of loan - agreed date to restructure loan not met - agreement terms disputed - accounts statements fail to refer to agreement - assertions do not meet documentary evidence presented - counterclaim for loss of title deeds - whether bank or receiver lost the title deeds - conflict on evidence which cannot be determined at interlocutory stage - assertion that borrower could not obtain refinancing from another lender as a result of loss of title deeds unsupported by documentary or other evidence - alleged loss of deeds has no impact on company's ability to repay loan - independent claim - summary judgment should not be stayed - bank did not get security initially over apartment blocks' common areas - defendants' have not denied they have prevents receiver's agents from gaining access to apartments - right of way by necessity - balance of convenience supports injunction.
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