The High Court refused Declan and Bernadette Fagan leave to seek judicial review of a Circuit Court order granting ACC Loan Management Ltd possession of property at Temple House, Horseleap, Co. Westmeath. Mr Justice McDermott delivered judgment on 10 May 2016.
The application was heard using a “telescoped” procedure: the court considered whether leave should be granted and, if so, whether the challenge could be decided on the affidavit evidence. The judge refused leave, finding that the applicants had not shown an arguable case. He therefore did not quash the possession order.
The Circuit Court made its possession order on 28 July 2015 over property comprised in Folio 7758, County Westmeath. The property includes the applicants’ family home and about 14.5 acres. The Circuit Court also ordered costs, to be taxed if the parties could not agree, and granted a stay of execution if the Fagans appealed. No appeal was taken.
The dispute arose from loans and guarantees connected with Temple Spa Limited. ACC Loan Management relied on a charge over the property and sought possession under section 62(7) of the Registration of Title Act 1964, as applied by the Land and Conveyancing Law Reform Act 2013. The Fagans had been adjudicated bankrupt in 2012 and discharged in 2015. Earlier High Court decisions had held that the property vested in the Official Assignee and that the Fagans could not challenge the validity of the charge. The Official Assignee had said he would not oppose enforcement of the security.
In the judicial review application, the Fagans argued that the Circuit Court hearing was unfair, that the Official Assignee had unlawfully disposed of an interest in their family home, that the Circuit Court wrongly barred certain challenges to the charge, and that their daughters should have been served with the possession proceedings.
The High Court held that the Fagans had notice of the application and evidence, filed affidavits and made submissions. It found that the Circuit Court’s decision on their standing was within its jurisdiction, and that the earlier High Court decisions had addressed the issue. The judge also concluded that the Official Assignee’s decision not to challenge the security did not amount to a disposition of the property, and that the Circuit Court had jurisdiction to decide who needed to be served. It had found that none of the daughters resided at the property on a full-time basis.