The High Court has dismissed Orla McNulty and Michael Igoe’s appeal against an order substituting Mars Capital Ireland Ltd. for Irish Nationwide Building Society as plaintiff in possession proceedings.
In a judgment delivered on 11 April 2019, Mr Justice Garrett Simons affirmed the Circuit Court’s order of 19 June 2018. He stressed that the order allowed the proceedings to continue in Mars Capital’s name; it did not grant leave to execute the possession order made in 2008.
The proceedings began in September 2006. A County Registrar made an order for possession against the defendants on 5 November 2008. After the defendants appealed that order, the Circuit Court struck out their appeal in November 2009 following an agreement under which they would consent to possession subject to a six-month stay.
In March 2017, the plaintiff applied to substitute Mars Capital, citing the transfer of the loan and related security. The Circuit Court granted that substitution and allowed the proceedings to be re-served. It refused a separate request concerning Mars Capital’s conversion to a designated activity company because the relevant certificate had not been exhibited. That refusal was not part of the High Court appeal.
The defendants had opposed the substitution, describing problems with the property, including boundary and sewerage issues, damage, losses and planning difficulties. They said separate High Court proceedings sought damages relating to the property and argued it would be unfair for Mars Capital to take over and pursue the possession order. Those were their submissions, not findings in this appeal.
Before hearing the appeal, Justice Simons refused the defendants’ application for discovery and to introduce new evidence. He said the requested material about corporate entities’ tax, residency and charitable status was irrelevant to the narrow question before him and should have been raised in the Circuit Court proceedings. He therefore decided the appeal on the material that had been before that court.
The judge found a prima facie basis for substitution, pointing to affidavit evidence about the transfers and the registration of Mars Capital as holder of the charge over the property. He also noted that written “hello” and “goodbye” letters had been served on the defendants.
Any application to enforce the 2008 possession order would require a separate application to the Circuit Court, on notice to the defendants, who would have an opportunity to object. The High Court said that question had not been determined by this appeal. The judgment recorded counsel’s statement that an application for leave to issue execution had been listed before the Circuit Court for May 2019.