Ker Property Management Ltd v McKeever & Anor

Factual and Procedural Background

This is an appeal from an Order for possession made by Judge Huddleston on 2 December 2024 requiring delivery up of possession of land described as [Number] Main Street, The City (folio [Number], The City) and ordering the defendants to pay the plaintiff's costs. Company A purchased the property from Company B on contract dated 10 July 2024 (completion 19 July 2024) and sought possession by originating summons under Order 113 Rules of Court.

In 2007 the defendants obtained a loan facility of £450,000 from Company B secured by a first legal charge dated 15 June 2007 (registered 17 December 2007). Drawdown occurred from 15 June 2007. The defendants defaulted, Company B appointed receivers in February 2013 and issued proceedings in May 2014 claiming damages (against the one defendant not bankrupt), declarations as to receivership, injunctions and possession. One defendant was adjudicated bankrupt in October 2009 and the trustee in bankruptcy transferred his interest to the other defendant in June 2010 subject to the charge.

Following protracted litigation the substantive hearing before Judge Simpson concluded with judgment dated 30 March 2023, which (among other things) gave judgment for the bank against one defendant, declared the receivers validly appointed and ordered delivery of possession (stay of enforcement 6 weeks). Company A contracted to buy the property from Company B in July 2024 and, after disputed events at the property, sought possession by Order 113 originating summons supported by an affidavit from Attorney Kelly. Judge Huddleston heard that application on 2 December 2024 and made the order now under appeal; he confirmed it on 10 December 2024. The present appeal (heard by Judge Treacy and Judge Colton, with judgment delivered by Judge Colton) challenges that order.

Legal Issues Presented

1. Whether the Order 113 possession order made by Judge Huddleston was flawed because the applicants (Company A) did not have "lawful possession" or because the earlier judgment of Judge Simpson was invalid or inapplicable.
2. Whether procedural irregularities or judicial misconduct (including alleged failure to give adequate reasons, denial of fair hearing, alleged hostile conduct, and alleged ex parte communications) required overturning the possession order.
3. Whether the redaction of parts of Judge Simpson's order or the representation of the defendants at the Simpson hearing rendered the subsequent possession proceedings unfair or invalid.

Arguments of the Parties

Appellants' Arguments

• The appellants contended that Judge Huddleston failed to give adequate or written reasons, failed to consider their arguments and denied them a fair hearing.
• They asserted that one defendant was the sole registered owner and therefore entitled to possession, and that the plaintiff/Company A had never been in lawful possession.
• They argued the judgment of Judge Simpson was invalid or that the defendants were not properly represented at that hearing.
• They alleged impropriety arising from the use of a redacted version of Judge Simpson's order and raised a recusal application against Judge Treacy based on prior hostile exchanges.
• They complained about an alleged ex parte communication and about non‑disclosure of transcripts of the lower court hearing.

Respondent's Arguments

• Company A relied on the judgment of Judge Simpson (30 March 2023) which declared the receivers validly appointed, confirmed the mortgage/charge and ordered delivery of possession; Company A derived its title from Company B's sale.
• Company A relied upon Order 113 and the statutory right of sale under sections 19, 20 and 24 of the Conveyancing Act 1881 together with the charge deed powers; the bank lawfully sold the property on foot of the charge.
• Company A explained the redacted order was provided by Company C (the bank's solicitors) and only omitted parts irrelevant to the possession issue; the respondent's solicitor did not alter it.
• The respondent denied any procedural impropriety from the court office's administrative request for a position paper and contended there was no prejudice to the appellants.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court reviewed the record of the hearing before Judge Huddleston and the prolonged earlier litigation culminating in Judge Simpson's judgment. The court analysed the appeal under the framework of Order 113, noting that an applicant must be in "lawful possession" (or entitled to possession) to obtain relief under that Order. It held that Company A derived its entitlement to possession from the bank's statutory powers of sale (Conveyancing Act 1881, ss.19, 20 and 24) and from the valid charge and appointment of receivers as determined by Judge Simpson.

The court found that the appellants had not established an arguable case that they remained entitled to possession or that Judge Simpson's order was invalid. The court considered and rejected the complaints of judicial misconduct and inadequate reasons, concluding Judge Huddleston had considered the relevant arguments and given reasons. The recusal application against Judge Treacy was dismissed as without merit. The court accepted the explanation for the redacted order (it having been provided by Company C and limited to possession‑relevant material) and rejected allegations of dishonesty against Attorney Trainor. The court treated the court office's request for a position paper as administrative and not prejudicial. The court also found that whether one defendant physically attended the Simpson hearing was irrelevant because Judge Simpson addressed both defendants and the judgment and orders were made against both.

Holding and Implications

The appeal is dismissed.

Direct effect: The order of Judge Huddleston for possession and for payment of the plaintiff's costs (taxed in default of agreement) stands, and the appellants remain required to comply with the possession order made in the earlier proceedings as upheld by this court.

No broader or novel legal precedent was created by this decision; the judgment applies existing statutory principles regarding powers of sale and receivership and affirms the finality of the prior judgment in these proceedings.