Judgment: 2013-07-16 · Court archive

High Court allows Ulster Bank appeal over possession claim

The appeal concerned whether a mortgage default made the full debt due before statutory changes took effect. The defendants did not appear, and the court stressed its ruling was based on an undefended case.

High Court · [2013] IEHC 347

Who, what, where, when and why

Who
  • Ulster Bank Ireland Limited (Plaintiff)
  • Stephen Carroll
  • Vicki Carroll (Defendant)
  • Iseult O'Malley (Judge)
What

The appeal concerned whether a mortgage default made the full debt due before statutory changes took effect. The defendants did not appear, and the court stressed its ruling was based on an undefended case.

Where

Places mentioned in the report

  • Clondalkin
  • Dublin 22
When

Judgment:

Other dates in the report
  • 1 December 2009

    The legal issue was whether the bank’s rights under section 62(7) of the Registration of Title Act 1964 had been preserved after that provision was repealed, or whether the lender needed to have demanded repayment before 1 December 2009. The judgment discussed earlier High Court decisions in Start Mortgages v Gunn and EBS v Gillespie, which addressed how mortgage terms affected when the secured debt became due.

Why

Reasons reported in the judgment

The bank argued that its mortgage was like the one in Gillespie: under clause 8(a), the “Total Debt” became immediately payable if a borrower defaulted on a periodic payment or other money due for a month. The judge accepted that a default had occurred and concluded that, under this clause, the full debt became due on the event of default without an additional demand. She therefore applied the approach in Gillespie and allowed the appeal.

The High Court allowed Ulster Bank Ireland Limited’s appeal against a Circuit Court refusal to make a possession order, ruling that the mortgage terms made the full debt due when a specified event of default occurred, without a further demand.

The appeal was heard on 22 April 2013, with no appearance by Stephen Carroll or Vicki Carroll. Justice Iseult O’Malley said she had allowed the appeal in an ex tempore ruling after hearing the bank’s submissions. She later issued a written judgment, stressing that the case was undefended and unargued and that the judgment was therefore of “very limited value”.

The bank’s claim arose from a €420,000 loan offered by First Active plc to the defendants in September 2006 and accepted in November that year. The loan was secured by a charge over a property at 1 Woodford Court, Clondalkin, Dublin 22. Ulster Bank became First Active’s successor in October 2009. The judgment said the defendants first missed a monthly instalment in or about January 2009. In December 2010, a letter called in the full loan balance, then stated to be €426,073.57, including €25,745.74 in arrears.

The legal issue was whether the bank’s rights under section 62(7) of the Registration of Title Act 1964 had been preserved after that provision was repealed, or whether the lender needed to have demanded repayment before 1 December 2009. The judgment discussed earlier High Court decisions in Start Mortgages v Gunn and EBS v Gillespie, which addressed how mortgage terms affected when the secured debt became due.

The bank argued that its mortgage was like the one in Gillespie: under clause 8(a), the “Total Debt” became immediately payable if a borrower defaulted on a periodic payment or other money due for a month. The judge accepted that a default had occurred and concluded that, under this clause, the full debt became due on the event of default without an additional demand. She therefore applied the approach in Gillespie and allowed the appeal.

The written judgment records that the appeal was allowed; it does not set out a separate operative possession order. It also notes that judgment had been reserved in another case addressing issues arising from Gunn, and that the present decision followed no argument from the defendants.

Read the original court judgment

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