Goldstein Property ICAV v RELM Loan Opportunities 2 Designated Activity Company and Ors (Approved)

Factual and Procedural Background

The Plaintiff obtained loan facilities from the Defendant secured by a portfolio of commercial properties in The City. The facilities expired on a Final Repayment Date by agreement in an Extension Letter. The Defendant appointed two Receivers to the secured properties by deeds of appointment after repayment obligations were not met. Some months later the Plaintiff issued proceedings alleging the Receivers were invalidly appointed and registered a lis pendens against the secured Properties. The Defendant applied to the Court to (i) strike out the proceedings as bound to fail, (ii) vacate the lis pendens on the basis it was not registrable under s.121(2)(a) of the Land and Conveyancing Law Reform Act, 2009, and (iii) alternatively vacate the lis pendens on grounds the proceedings were not being prosecuted bona fide. The application was heard by Judge Twomey and judgment was delivered on 21 January 2026.

Legal Issues Presented

1. Whether litigation challenging the validity of a receiver's appointment constitutes "an action ... in which a claim is made to an estate or interest in land" for the purposes of s.121(2)(a) of the Land and Conveyancing Law Reform Act, 2009 (and therefore whether a lis pendens may be registered against a receiver).
2. Whether the Plaintiff's proceedings are so weak that they are bound to fail and should be struck out under Order 19 rule 28.
3. Whether, alternatively, the lis pendens should be vacated on the basis the proceedings are not being prosecuted bona fide.

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff contended the lis pendens was registrable under s.121(2)(a) and relied on the High Court decision in Fay v Promontoria (Oyster) DAC [2022] IEHC 483 to support that litigation challenging a receiver's appointment may amount to a claim to an interest in land.
• The Plaintiff disputed that its proceedings were bound to fail and relied on its pleaded factual case (including alleged agreements and representations) and affidavit evidence to show arguable merit.
• The Plaintiff denied mala fides and relied on explanations for delay and on the proposition that offers to refinance are not, per se, evidence of improper motive.

Defendant's Arguments

• The Defendant argued the Plaintiff was not entitled to register a lis pendens because a receiver does not hold an estate or interest in land; it relied on the narrower interpretation in Moorview Developments Ltd v First Active PLC [2011] 1 IR 117 (Judge Clarke) that a receiver's right to transfer is contractual and not an interest in land.
• The Defendant submitted the Plaintiff's claim was very weak and, given delay and the alleged failure to pay interest, the proceedings were bound to fail and should be struck out.
• The Defendant alternatively contended the lis pendens should be vacated because the proceedings were not being prosecuted bona fide and/or were being used as leverage in settlement negotiations.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court framed the central statutory text of s.121(2)(a): registration is permitted where "a claim is made to an estate or interest in land." Applying first principles and authorities, the Court analysed two competing High Court interpretations. Judge Clarke's approach in Moorview treats a receiver's power to transfer as contractual and holds that a receiver does not possess an estate or interest in the land; accordingly, litigation against a receiver is concerned with the receiver's power (an injunction or contract-based relief) and not a claim to an estate or interest in land. Judge Butler's approach in Fay treated a challenge to a receiver's appointment as capable of affecting title and thus potentially registrable; she considered there may be an arguable exception where validity is in issue.

The Court concluded there are indeed two conflicting High Court views and that Worldport did not oblige following Fay. The Court preferred the Moorview analysis for principled and practical reasons: (i) Clarke J.'s first-principles distinction between ownership (the borrower/company) and the receiver's contractual power to effect transfers; (ii) policy considerations—a broader interpretation would allow the simple act of issuing proceedings to effectively injunct sales for lengthy periods without judicial testing of merits; (iii) analogies with directors and attorneys supported treating challenges to authority as claims about power, not interests in land.

On the strike-out issue, the Court applied the high Keohane threshold: it accepted the Defendant's submissions that the Plaintiff's case was weak (delay, unpaid interest, factual deficits) but held that at interlocutory stage the Plaintiff's case must be taken at its height and that it was not shown to be so weak as to be clearly bound to fail. On bona fides, applying Togher, the Court found that absence of cross-examination and the need to take Plaintiff's evidence at its height precluded a finding of mala fides at this stage.

Holding and Implications

The Court refused to strike out the proceedings but ordered that the lis pendens registered against the Properties be vacated.

Implications:

• Direct effect: The Plaintiff's substantive proceedings may proceed to trial; the registration that impeded sale of the secured properties is removed, permitting the Receivers to proceed with disposals subject to other orders or applications.
• The Court adopted the narrower interpretation of s.121(2)(a) (as in Moorview): litigation against a receiver does not, by virtue of that status, constitute a claim to an estate or interest in land for registration of a lis pendens.
• The decision does not purport to settle the conflicting High Court authorities finally; the Court noted the matter is properly for appellate determination and did not treat its preference as creating binding appellate precedent.