Kaifan Ltd v Kearney and Anor (Approved)

Factual and Procedural Background

Company A sought an interlocutory injunction pending trial requiring the Defendant to vacate the Carpark, described as a large yard attached to the Property; the judge stressed that he was not finally determining the merits and was only deciding the fairest arrangements pending trial. [Para 12][Para 14]

The parties had executed, on or around 1 October 2018, a Lease, a deed renouncing rights under the Landlord and Tenant (Amendment) Act 1980, and side letters dealing with a €40,000 cash payment, the rear/side yard, and a landlord break right after the third year. [Para 20][Para 22]

Company A alleged that rent stopped being paid in November 2020, the Term expired on 30 June 2023, a notice to quit was ignored, and the Defendant remained in occupation unlawfully; it also alleged that, after Company A repossessed the Property on 25 February 2026, it discovered third parties occupying and trading from the Carpark without consent. [Para 25][Para 31]

The Defendant denied that the written documents reflected the true bargain, asserting that he had agreed rent-free occupation, a right to sublicense, and preserved renewal rights, while disputing the independence and role of the persons involved in the 2018 transaction. [Para 19][Para 49][Para 54][Para 55]

Legal Issues Presented

1. Whether Company A met the threshold for interlocutory relief, applying the higher Maha Lingham standard, to require the Defendant to vacate pending trial. [Para 14][Para 133][Para 136]
2. Whether the written Lease, deed, and side letters bound the Defendant despite his claim that they did not reflect the real agreement. [Para 20][Para 24][Para 119][Para 122]
3. Whether the balance of justice favoured restoring possession to Company A pending trial, including whether damages were an adequate remedy for either side. [Para 140][Para 143][Para 161]

Arguments of the Parties

Company A's Arguments

• The Defendant had no right to remain because rent had not been paid, the Term had expired, and a valid notice terminated any remaining tenancy. [Para 18][Para 25][Para 115][Para 116]
• The Defendant was allegedly licensing or subletting to numerous occupants without consent and making substantial income from the Carpark. [Para 19][Para 31][Para 82][Para 93]
• Damages would not adequately protect Company A because continued occupation could disrupt redevelopment and allow ongoing unlawful profits, whereas the Defendant's loss would be financial and compensable. [Para 38][Para 41][Para 140][Para 143][Para 145]
• The Defendant's forcible re-entry was said to be relevant to the discretionary balance. [Para 44][Para 151]

Defendant's Arguments

• The 2018 documents were said not to reflect the whole agreement; the Defendant claimed he could occupy the Carpark rent-free, sublicense it, and retain renewal rights. [Para 19][Para 50][Para 53][Para 59][Para 65]
• He said he was not independently advised, did not understand the documents he signed, and believed Mr Reynolds represented Company A rather than him. [Para 49][Para 54][Para 71][Para 74]
• He claimed he would lose custom, goodwill, and business stability if evicted, and that an injunction might jeopardize trial and evidence-gathering. [Para 73][Para 76]
• He argued that the status quo was prolonged non-payment of rent and that development was not imminent. [Para 75][Para 79]

Table of Precedents Cited

Court's Reasoning and Analysis

1. The court treated the formal 2018 documentation as the starting point and considered that the parties’ motives mattered less than whether their agreement was reflected in those documents. [Para 110]
2. The judge found the Defendant’s undocumented version of a rent-free, sublicensing arrangement hard to reconcile with the contemporaneous documents, which did not support it. [Para 112]
3. The court held that Company A had shown a strong case likely to succeed because the termination side letter allowed termination on three months’ notice after the third anniversary, notice was given, the lease had expired, and the Defendant remained in occupation without paying rent. [Para 113][Para 114][Para 115][Para 116]
4. The Defendant’s attacks on the agreements raised issues that could only be resolved at trial, but at this stage they remained bare assertions and did not align with the objective evidence. [Para 117][Para 119][Para 123][Para 124]
5. The judge considered the Defendant’s failure to deliver a defence significant because pleading defaults continue to matter in interlocutory applications and reduce the credibility of unparticularised defences. [Para 125][Para 127][Para 132][Para 159]
6. On balance of justice, the court concluded that damages would not adequately protect Company A because the Defendant was allegedly extracting substantial profits while withholding possession, whereas the Defendant’s loss would be financial and compensable. [Para 140][Para 142][Para 143]
7. The court also considered the Defendant’s continued occupation disruptive and a security concern in light of the alleged sublicensing and the uncertainty over the occupants. [Para 145][Para 146][Para 149]
8. The Defendant’s re-entry conduct weighed against him, although it was not determinative. [Para 151]
9. The judge accepted that Company A had delayed enforcement somewhat, but held that the Defendant bore primary responsibility for the position and that any delay in reaching trial could be managed by an undertaking to progress the case expeditiously. [Para 153][Para 159][Para 161]

Holding and Implications

The court was disposed to grant the interlocutory relief sought once Company A and its solicitor gave an undertaking to diligently and expeditiously progress the proceedings to trial. [Para 161]

The immediate effect was that the Defendant could be required to vacate the Carpark pending trial, while the substantive rights of both parties remained to be decided at trial. Company A was also presumptively entitled to its costs, subject to further submissions on the precise order. [Para 12][Para 167]

The decision was fact-specific and did not establish a new general rule beyond the application of settled interlocutory injunction principles. [Para 14][Para 163][Para 167]