“Facts-at-Time” Test for Receiver Sales:
Ryan v. Promontoria (Aran) Ireland Ltd & Ors – A Comprehensive Commentary

1. Introduction

Ryan v Promontoria (Aran) Ireland Ltd & Ors ([2025] IEHC 362) concerns an application by John Ryan, an investor-landlord, for interlocutory injunctions restraining the sale of one remaining rental property (4 Corr na Cille, Banagher, Co. Offaly) by receivers appointed over his buy-to-let portfolio.

The central questions were:

1. Does the receiver actually possess a contractual or statutory power of sale over the specific property?
2. If a “fair issue” exists, does the balance of justice favour injunctive relief, having regard to adequacy of damages, delay, status quo and the worth of the plaintiff’s undertaking as to damages?

Mr Justice Conor Dignam found a bona fide issue about the receiver’s authority but ultimately refused the injunction, holding that damages were adequate and the balance of justice lay with the defendants. Importantly, he articulated a new emphasis: a court must decide interlocutory relief on the state of affairs actually before it (“facts-at-time”), not on hypothetical powers the mortgagee could exercise in the future.

2. Summary of the Judgment

• Fair Issue: The mortgage deed contained no express receiver’s power of sale; the draft auction contract named the receiver (not Promontoria as mortgagee) as vendor. A serious issue therefore existed.
• Balance of Justice:
  • The property was a pure investment; damages could compensate.
  • Plaintiff’s financial position rendered his undertaking weak.
  • Significant historic delay (appointment in 2016, litigation in 2021) reduced equity in granting relief.
• Result: All injunctive relief refused; receiver (or mortgagee) free to proceed, subject to any later trial findings.
• Key Principle Articulated: Where the receiver purports to sell without a clear contractual power, the court cannot justify refusal of an injunction by postulating that “the mortgagee could sell anyway.” The legality of the very act complained of must stand or fall on the facts as they exist at the application date.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

1. Campus Oil v Minister for Industry & Energy (1983): Classic tripartite test for interlocutory injunctions.
2. Okunade v Minister for Justice (2012): Reformulated the test, emphasising “balance of justice.”
3. Merck Sharp & Dohme v Clonmel Healthcare (2019) SC: Eight-step analytical framework; central importance of adequacy of damages. Justice Dignam explicitly adopted its flexible methodology.
4. Sammon v Tyrell & Everyday Finance DAC (2021) HC: Allen J granted an injunction when the receiver lacked a power of sale, stressing that a hypothetical mortgagee sale cannot defeat the injunction. Ryan builds on, and crystallises, this reasoning into a more general rule (the “facts-at-time” test).
5. Nolan Transport (Oaklands) Ltd v Halligan (1994), McGonagle v McAteer (2017): Delay as a discretionary bar – invoked by defendants; accepted by the Court but given limited weight.
6. Molloy v Molloy (2007), Nolan & Ors v Dildar Ltd (2020): Effect of worthless undertakings; relied upon in assessing plaintiff’s means.
7. Bank of Ireland v Hade (2023) CA: Exemplary damages for unlawful receiver sale; plaintiff argued its existence meant damages inadequate - Court disagreed.

3.2 Court’s Legal Reasoning

(a) Fair Question to be Tried

• Clauses 11–12 of the 2004 mortgage conferred management powers but no express power of sale.
• Draft auction contract identified receiver as vendor; therefore, actual transaction was a receiver sale.
• Promontoria’s statutory power under the Conveyancing Act 1881 as mortgagee in possession was irrelevant unless and until Promontoria itself decided to sell. The Court refused to treat that hypothetical future as decisive.

(b) Balance of Justice

• Adequacy of Damages: Investment nature of property + capacity to quantify loss = damages adequate.
• Undertaking as to Damages: Plaintiff heavily indebted; undertaking of little worth → weighs against injunction but not automatically fatal.
• Delay/Status Quo: Five-year gap between receiver appointment and motion; although plaintiff acted swiftly once auction announced, historic inaction undermined equity.
• Other Considerations: Unknown precise debt figure; potential appreciation of asset; nonetheless insufficient to tip balance.

3.3 Impact of the Decision

1. Receiver Sales Scrutiny: Courts must focus on the authority actually relied on at the moment of sale. A mortgagee’s latent statutory powers cannot retrospectively validate a receiver’s unauthorised sale. This strengthens borrowers’ ability to challenge receiver disposals lacking explicit authority.

2. Investment Property Injunctions: Where the secured asset is a buy-to-let or other commercial investment, plaintiffs will find it harder to contend that damages are inadequate.

3. Undertakings & Means: Re-affirms that impecuniosity does not automatically bar injunctive relief, but significantly influences the balance of justice. Future applicants must be ready to evidence an ability to satisfy potential damage awards, or to propose alternative security.

4. Practice Direction for Draft Contracts: Creditors and receivers will likely redraft contracts to ensure the correct vendor is named (mortgagee in possession) where receiver powers are doubtful, to avoid the “facts-at-time” trap.

5. Litigation Strategy: Plaintiffs cannot raise new injunction grounds after hearing unless truly novel; emphasises disciplined pleading and argument sequencing.

4. Complex Concepts Simplified

• Interlocutory Injunction: A temporary court order granted before full trial, designed to hold the line so that final judgment is effective.
• Receiver vs. Mortgagee in Possession:
  • Receiver: An agent appointed (usually under a mortgage) to realise assets for the lender; powers must be found in the deed or statute.
  • Mortgagee in Possession: The lender itself takes possession and can rely on statutory sale powers under the Conveyancing Act 1881 (now 2009 Act).
• Power of Sale: Legal authority to sell mortgaged property without court order once certain default conditions are met.
• Balance of Convenience / Justice: Weighing the risk of injustice to each side if an injunction is granted or refused.
• Undertaking as to Damages: A promise given by the applicant to compensate the respondent for losses caused by the injunction if it later proves unwarranted.
• Statute-Barred Debt: A debt unenforceable because the limitation period has expired (raised but not decided in this motion).

5. Conclusion

Ryan v Promontoria establishes a pragmatic but borrower-friendly clarification: when assessing injunctions against receiver sales, Irish courts must test the transaction as framed on the day, not defend it by resort to alternative powers that the lender might later deploy. Although Mr Ryan ultimately lost because damages were deemed adequate and his undertaking weak, the “facts-at-time” principle will resonate in future mortgage enforcement disputes, compelling lenders to ensure that their appointed receivers unquestionably possess a contractual or statutory power of sale before marketing properties.

The judgment simultaneously signals to borrowers that investment-grade assets rarely qualify for the special solicitude given to family homes and that any application for injunctive relief must be timely, well-pleaded, and backed by concrete ability to satisfy a damages undertaking.

Overall, the decision refines Irish interlocutory injunction jurisprudence, harmonising flexibility with fairness, and balances commercial certainty against property-owner protections.