Judgment: 2018-10-30 · Court archive

Court of Appeal dismisses both appeals in mortgage possession dispute

The court upheld injunctions against a borrower who placed animals on secured land after possession had been taken, and rejected his motion to dismiss the mortgage proceedings.

Court of Appeal · [2018] IECA 334

Who, what, where, when and why

Who
  • Carlisle Mortgages Limited (Plaintiff)
  • Eugene Costello (Defendant)
What

The court upheld injunctions against a borrower who placed animals on secured land after possession had been taken, and rejected his motion to dismiss the mortgage proceedings.

Where

No place detail is included in this summary.

When

Judgment:

Other dates in the report
  • 20 November 2006

    The dispute began with a €400,000 loan accepted in May 2004 and secured by a first legal charge over Costello’s lands. After default, the High Court ordered possession on 20 November 2006. Costello did not appear at that hearing and did not appeal the possession order. The Court of Appeal described the loan’s 26.7% interest rate as high and its repayment terms as arduous; Costello later argued that the interest and the loan’s enforceability raised consumer-law issues.

  • 5 July 2017

    The appeals concerned separate High Court orders made on 5 July 2017. One granted the lender’s requested injunctions; the other refused Costello’s application to dismiss the proceedings as bound to fail or under the court’s inherent jurisdiction.

Why

Reasons reported in the judgment

The appellate judgment traced years of enforcement proceedings, including Costello’s imprisonment for contempt in 2014 after failing to comply with the possession order. He was released two days later after the High Court found that he had purged his contempt, on his undertaking that no further cattle would be allowed on the lands and that possession was being surrendered.

The Court of Appeal dismissed two appeals by Eugene Costello arising from a mortgage dispute with Carlisle Mortgages Limited. It upheld injunctions made by the High Court in July 2017, restraining Costello from obstructing a sale of the secured lands or placing animals there, and requiring him to remove animals. It also upheld the dismissal of his motion to have the lender’s proceedings dismissed.

The appeals concerned separate High Court orders made on 5 July 2017. One granted the lender’s requested injunctions; the other refused Costello’s application to dismiss the proceedings as bound to fail or under the court’s inherent jurisdiction.

The dispute began with a €400,000 loan accepted in May 2004 and secured by a first legal charge over Costello’s lands. After default, the High Court ordered possession on 20 November 2006. Costello did not appear at that hearing and did not appeal the possession order. The Court of Appeal described the loan’s 26.7% interest rate as high and its repayment terms as arduous; Costello later argued that the interest and the loan’s enforceability raised consumer-law issues.

The appellate judgment traced years of enforcement proceedings, including Costello’s imprisonment for contempt in 2014 after failing to comply with the possession order. He was released two days later after the High Court found that he had purged his contempt, on his undertaking that no further cattle would be allowed on the lands and that possession was being surrendered.

That same day, an agent acting for a receiver appointed by the lender entered and secured the lands. The Court of Appeal held that possession had then been taken under the 2006 order, achieving its purpose. Later placement of animals was trespass, the court said, and did not amount to retaking possession. The lender therefore did not need to renew an execution order before seeking injunctions to restrain the later trespass.

The court rejected Costello’s argument that the lender needed a renewed execution order to obtain the injunctions. It also held that his opportunity to raise challenges to the loan and its terms was when the original possession application was heard. The High Court’s injunctions were upheld, and both appeals were dismissed.

Read the original court judgment

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