Challenge to Receiver Appointment Is Not “a Claim to an Estate or Interest in Land” for Lis Pendens Purposes (s.121(2)(a) LCLRA 2009)

Case: Goldstein Property ICAV v RELM Loan Opportunities 2 Designated Activity Company and Ors (Approved) [2026] IEHC 29 (Commercial Court, High Court)
Judge: Twomey J.
Date: 21 January 2026

1. Introduction

This decision addresses a recurring and high-stakes tactic in secured lending disputes: the registration of a lis pendens to deter purchasers and effectively prevent a receiver from selling secured property, potentially for years, without any prior judicial assessment of the merits of the claim. Twomey J. frames the issue as one “of general application”: whether a borrower can, by simply issuing proceedings challenging a receiver’s appointment, register a lis pendens and thereby obtain the practical equivalent of an injunction.

The plaintiff, Goldstein Property ICAV (“Goldstein”), acted for a sub-fund borrower and challenged the appointment of receivers over a portfolio of 47 commercial properties securing loans exceeding €150 million. The first three defendants (collectively “RELM”) were the lenders; the fourth and fifth defendants were the Receivers (Ken Fennell and Brendan O’Reilly).

Key issues:

• Strike-out: Were Goldstein’s proceedings “bound to fail” (Order 19 rule 28), such that allowing them to proceed would be an abuse of process?
• Lis pendens: Is an action alleging that receivers were invalidly appointed an action “in which a claim is made to an estate or interest in land” under s.121(2)(a) of the 2009 Act?
• Conflicting High Court authority: How should the court proceed where two High Court decisions (notably Moorview Developments Ltd v First Active PLC [2011] 1 IR 117 and Fay v Promontoria (Oyster) DAC [2022] IEHC 483) appear to adopt competing interpretations of the same statutory provision?

2. Summary of the Judgment

2.1 Strike-out refused

The court refused to strike out the proceedings. Although Twomey J. considered Goldstein’s case “very weak” (pointing to an eight-month delay in challenging the receivers and an apparent separate default in interest payments), the court applied the high threshold for dismissal articulated in Keohane v Hynes [2014] IESC 66 and Barry v Buckley [1981] 1 I.R. 306. Taking the plaintiff’s case “at its height”, the claims were not so clearly doomed that permitting them to proceed would be an abuse of process.

2.2 Lis pendens vacated

The court vacated the lis pendens. Twomey J. preferred the “narrow” reading of s.121(2)(a) in Moorview Developments Ltd v First Active PLC [2011] 1 IR 117: a receiver’s authority to sell is a contractual power derived from the security instrument (e.g., debenture/deed of appointment), not an “estate or interest in land”. Therefore, litigation challenging a receiver’s appointment is not litigation in which a claim is made to an estate or interest in land.

2.3 Worldport doctrine addressed

The court held this was not a straightforward In Re Worldport Ireland Limited [in liquidation] [2005] IEHC 189 scenario requiring adherence to a single prior High Court decision (here, Fay). Rather, because there were two apparently divergent High Court interpretations of s.121(2)(a) (Moorview vs Fay), Twomey J. considered it open to the court to adopt the interpretation it regarded as correct pending appellate clarification.

3. Analysis

3.1 Precedents Cited

(a) Strike-out / abuse of process threshold

• Keohane v Hynes [2014] IESC 66: The court emphasised the purpose of the strike-out jurisdiction is to prevent abuse of process, not to decide disputes summarily. The test is whether it is “clear the proceedings are bound to fail rather than where the plaintiff’s case is very weak”, and whether plaintiff evidence “if accepted, at trial, might arguably lead to the plaintiff succeeding”. Twomey J. applied this to refuse strike-out despite scepticism about Goldstein’s delay and alleged interest-payment default.
• Barry v Buckley [1981] 1 I.R. 306: Used both for strike-out principles (Costello J.’s formulation that the court must be satisfied the plaintiff’s case “must fail”) and—critically—for illustrating the practical power of a lis pendens to prevent resale “perhaps extending over several years”.
• Moylist (as referenced in the judgment): Cited for the “default position” that proceedings should go to trial; Twomey J. invoked this in reinforcing reluctance to terminate at an early stage.

(b) Lis pendens: competing High Court interpretations of s.121(2)(a)

• Moorview Developments Ltd v First Active PLC [2011] 1 IR 117: The central authority preferred by Twomey J. Clarke J. reasoned from “first principles” that a receiver “does not own any interest in lands” and that the receiver’s ability to execute a transfer does not transform the receiver into a person with an interest in the land. A claim seeking injunctive relief against a receiver is “a claim to an injunction”, not a claim “relating to an interest in land”. Thus a lis pendens is not properly registered against a receiver, though it may be registered against the company in receivership.
• Fay v Promontoria (Oyster) DAC [2022] IEHC 483: Butler J. refused to vacate a lis pendens in litigation challenging the validity of a receiver’s appointment (in an individual borrower context), suggesting it was at least “arguable” that Clarke J.’s statement in Moorview does not hold where the receiver’s appointment is itself in issue. Twomey J. treated Fay as reflecting a broader reading of s.121(2)(a).
• Darcy v AIB Plc [2022] IEHC 162: Roberts J. followed Fay in an individual receivership context. Twomey J. noted that Darcy did not indicate that Moorview was argued, and therefore did not resolve the underlying conflict.

(c) How to handle conflicting High Court authority

• In Re Worldport Ireland Limited [in liquidation] [2005] IEHC 189: Invoked by Goldstein for the proposition that one High Court judge generally follows another absent substantial reason. Twomey J. distinguished the present situation: where two High Court decisions interpret the same provision differently, it is not a straightforward “follow the earlier coordinate decision” case; appellate guidance is needed, and pending that, the court may adopt the interpretation it finds correct.

(d) Lis pendens as tactic / chilling effect

• O'Loughlin v Moran [2021] IEHC 852: Cited for the observation that a lis pendens can be used as a “tactic”, and that the harm from continued registration can be self-evident—supporting the court’s concern about automatic, merits-free freezing of sales.

(e) Bona fides prosecution (alternative basis to vacate)

• Togher Management Company Ltd & Anor v Coolnaleen Developments Ltd (in Receivership) [2014] IEHC 596: Used to caution against findings of lack of bona fides at an interlocutory stage absent compelling evidence or cross-examination. Twomey J. indicated he would not have found mala fides here, had it been necessary.

(f) First principles underpinnings referenced by Clarke J. in Moorview

• A.S. v. G.S. [1994] 1 I.R. 407 and Bellamy v. Sabine [1957] 1 De. G. & J. 566: cited within Moorview to describe the foundational purpose of lis pendens as notice of litigation “as to the right to a particular estate”.
• Moorview Developments Ltd and Others v First Active Plc & Ors [2009] IEHC 214: referenced to rebut the suggestion in Fay that the validity of appointment was not at issue in Moorview; Twomey J. notes Clarke J. had recorded submissions that the receiver was “improperly appointed”.

(g) Costs / use of court resources

• Word Perfect Translation Services Ltd v Minister for Public Expenditure and Reform [2023] IECA 189: cited for the “broad-brush” approach to costs and discouragement of resource-intensive “nit-picking”.

3.2 Legal Reasoning

(1) The statutory gatekeeper: s.121(2)(a)

The analysis turns on the statutory wording: a lis pendens may be registered only in “any action…in which a claim is made to an estate or interest in land”. Twomey J. treats this as a threshold jurisdictional fact: if the pleaded action is not of that character, registration is impermissible regardless of the plaintiff’s subjective concerns about sale or title risk.

(2) Receiver’s power vs receiver’s “interest”

Adopting Clarke J.’s “first principles” approach in Moorview, Twomey J. distinguishes:

• An “interest in land” (ownership, estate, proprietary entitlement), from
• A power/authority to transfer land on behalf of the owner (a contractual authority under a debenture/deed of appointment).

On that view, a receiver does not become a holder of any proprietary interest by being empowered to execute transfers. The owner (the borrower/company/landowner) remains the person with the estate or interest; the receiver is an agent-like actor who can cause the owner to effect a transfer.

(3) Why “invalid appointment” does not change the character of the claim

Twomey J. rejects the distinction suggested in Fay that Moorview might not apply where the validity of appointment is challenged. If the receiver, by definition, has no proprietary interest, then challenging the receiver’s authority still targets a power, not a proprietary estate. The judgment strengthens this conclusion by analogy:

• Company directors can execute transfers without having an interest in the company’s land; a challenge to a director’s appointment would not be a claim to an interest in land.
• Attorneys under power of attorney may transfer property; litigation about their capacity or authority affects the reliability of title but is not itself a claim to an interest in land.
• Receiver bankruptcy/disqualification (with reference to s.433(1)(a) Companies Act, 2014) may affect power to act, but litigation about disqualification remains non-proprietary in nature.

(4) Remedy is injunction, not automatic “injunction-by-registration”

A central normative theme is procedural fairness and proportionality: a lis pendens can deliver a de facto injunction without merit-testing. Twomey J. treats Moorview as insisting the proper route to prevent a receiver’s sale is an injunction application, where the borrower must satisfy the court, rather than unilaterally chilling the market through registration.

(5) Managing conflicting coordinate authority

The court’s treatment of In Re Worldport Ireland Limited [in liquidation] [2005] IEHC 189 is significant. Twomey J. does not discard the discipline of coordinate consistency, but reframes it: where the High Court has already produced two competing interpretations of the same statutory text, the “Worldport doctrine” cannot compel adherence to one side as if the other did not exist. Twomey J. explicitly positions the issue as requiring appellate clarification, while choosing the interpretation he considers correct in the interim.

3.3 Impact

(1) Immediate practical impact in secured lending and receiverships

If followed, the decision materially reduces the ability of borrowers to halt receiver sales by issuing proceedings and registering a lis pendens. Borrowers challenging appointment will likely have to:

• seek an injunction (with the attendant legal tests and potential undertaking as to damages), and/or
• frame proceedings against the landowner entity (e.g., the company in receivership) where a genuine proprietary claim exists, consistent with Moorview.

(2) Market certainty and transactional confidence

The judgment is explicitly motivated by the “chilling effect” identified in Barry v Buckley [1981] 1 I.R. 306 and O'Loughlin v Moran [2021] IEHC 852: registrations that deter buyers for years regardless of merits. The decision tends toward greater certainty for purchasers and receivers by limiting lis pendens to claims that are truly proprietary in nature.

(3) Doctrinal impact: narrowing “interest in land” under s.121(2)(a)

Twomey J.’s reasoning reinforces a categorical distinction between (i) litigation about proprietary entitlement and (ii) litigation about authority/power to convey. This narrowing can influence disputes involving:

• agents and attorneys executing conveyances,
• office-holders and corporate governance disputes touching disposal authority, and
• other contexts where power to transfer is mistaken for an interest in the asset.

(4) Appellate significance

The judgment squarely identifies a conflict between Moorview Developments Ltd v First Active PLC [2011] 1 IR 117 and Fay v Promontoria (Oyster) DAC [2022] IEHC 483 (with Darcy v AIB Plc [2022] IEHC 162 following Fay). This makes the case a strong candidate for appellate resolution on the proper construction of s.121(2)(a).

4. Complex Concepts Simplified

4.1 What is a lis pendens?

A lis pendens is a formal notice recorded in the High Court’s register stating that litigation is pending regarding land. In practice, it often makes a property commercially unsaleable because purchasers and their funders will not proceed while the notice remains.

4.2 “Interest in land” vs “power to sell land”

An interest in land is a proprietary right (ownership, estate, or other legal/equitable interest). A power to sell is an authority to execute a sale/transfer on behalf of the owner. This judgment treats a receiver’s power as belonging to the second category: significant in practice, but not a proprietary “interest”.

4.3 Why the distinction matters

s.121(2)(a) only allows a lis pendens where the court action itself is one that claims an estate/interest in the land. If the action is instead about whether a particular person has authority to sell (receiver/director/attorney), the action may affect title risk but is not, on this judgment’s approach, a proprietary claim qualifying for registration.

4.4 The “Worldport doctrine” in plain terms

The coordinate-court convention (from In Re Worldport Ireland Limited [in liquidation] [2005] IEHC 189) is that High Court judges generally follow earlier High Court decisions unless there are strong reasons not to. Twomey J. held that where the High Court has already issued conflicting interpretations, the case is not a simple “follow the earlier judge” scenario; the court may choose the better interpretation pending appellate guidance.

5. Conclusion

Twomey J. refused to strike out Goldstein’s claim but vacated the lis pendens, holding that proceedings challenging the validity of a receiver’s appointment do not meet the statutory requirement of being an action in which a claim is made to an estate or interest in land under s.121(2)(a) of the 2009 Act. The decision prioritises a principled, property-law distinction between proprietary interests and mere authority to transfer, and addresses the systemic risk that lis pendens can operate as a merits-free injunction. It also crystallises a clear conflict in High Court authority (Moorview vs Fay), highlighting the need for appellate resolution while signalling a restrictive approach designed to prevent tactical market-freezing in receivership sales.