The High Court has refused a credit union’s applications for well charging orders and the sale of two properties jointly owned by borrowers and their spouses.
The special summonses were brought by Muintir Skibereen Credit Union Limited against Cornelius Crowley and Brendan Hamilton. The judgment, delivered by Mr Justice Michael White on 23 January 2015, says both properties were family homes and the applications were made under section 31 of the Land and Conveyancing Law Reform Act 2009.
The borrowers had obtained a commercial loan to develop property but were unable to repay it after financial difficulties and the collapse of the property market. The credit union obtained judgment on 5 October 2011 for €562,500 and costs of €355.98. The judgments were registered against both properties on 9 December 2011.
The defendants raised technical objections to the judgment mortgages, arguing that the affidavit jurat being on a separate sheet made the mortgage invalid and that Donal O’Driscoll was not authorised to swear the affidavit. The court rejected those arguments, finding the mortgages had been appropriately registered and that O’Driscoll was an appropriate person to swear the affidavit.
In considering whether to grant the requested orders, the judge noted that neither spouse had been consulted about the commercial loan or signed documents putting the family home up as security. The court also considered that Crowley’s wife had responsibility for three dependent children, aged 13, eight and six, and that Hamilton’s wife was in ill health. The judgment says both borrowers were in serious debt and that the spouses’ half share of any net sale proceeds would not provide either family with enough to buy another family home.
The court exercised its discretion to refuse both applications. It did not order the properties charged or sold.