A man whose investment property was taken over by a receiver admitted breaking down its door in an attempt to re-assert ownership, the High Court has heard.
Philip O’Brien owned the residential property at Poleberry in Waterford, which he bought with a mortgage from Investec Bank that was later defaulted on.
Arising out of an incident in which he claimed, after he broke down the door, he was assaulted by a tenant of the property, he brought High Court proceedings against various parties including the receiver, Simon Coyle and his firm Mazars.
Ms Justice Deirdre Murphy dismissed his claim for damages for assault and battery against most of the defendants as unstateable and bound to fail. She did not dismiss the case against the receiver, saying not enough evidence had been presented which would show the case against the receiver was also unstateable.
The judge said that after Mr O’Brien defaulted on his loans, Investec appointed Mr Coyle as receiver in February 2011. Mr Coyle then retained a firm called “Book a Room The Accommodation Company Ltd” to rent the property out on the receiver’s behalf.
Three years after he had ceded possession to the receiver, Mr O’Brien began to reassert ownership by demanding the tenants pay rent directly to him, the judge said.
Intimidated
The uncontroverted evidence was that the family in the apartment, who had an 11-year-old child, felt intimidated by Mr O’Brien’s behaviour, the judge said. As a result, they moved out in a matter of weeks.
The Book a Room company, at the request of the receiver, then arranged for a new tenant on a caretaker arrangement at a reduced rent of €200 a week. The caretaker was also an employee of a security company regularly used by Book a Room.
There were incidents over three days in April 2014 involving Mr O’Brien and the caretaker tenant. They resulted in gardaí being called on the third day after Mr O’Brien, by his own admission, broke down the door when he knew there was someone in occupation, the judge said.
Mr O’Brien claimed the tenant assaulted him in the course of resisting the incursion on the property. However, Mr O’Brien was subsequently arrested and charged over the incident. The charges were dismissed by a district court judge, who was not satisfied as to ownership of the property.
Mr Coyle said he was not asked to give evidence in the district court but did provide gardaí with proof of his appointment as receiver.
Liable
Mr O’Brien then brought High Court proceedings claiming, among other things, that the receiver and others were vicariously liable for the alleged assault on him by the caretaker tenant.
A total of 22 parties were sued including current and former members of Investec Bank and partners in Mazars. The defendants all denied the caretaker tenant was their employee or that they could be held vicariously liable for his actions. They said he was a tenant and there was no way a landlord can be held vicariously liable for the actions of a tenant.
Ms Justice Murphy accepted the case was bound to fail in relation all the defendants, except Mr Coyle, and she dismissed them. While the case against Mr Coyle appeared on the facts to be unmeritorious, it was not possible to adjudicate at this stage that it was bound to fail, she said.
Depending on how the evidence falls, it was conceivable the caretaker tenant might have been an agent of the receiver, she said.