The Court of Appeal has dismissed Start Mortgages DAC and Mars Capital Finance Company DAC’s appeal against the refusal of an interim order requiring Simon and Deirdre Kavanagh to leave their home in Enniscorthy, County Wexford. The substantive dispute has not been decided and remains for trial.
In a judgment delivered on 5 June 2025, Mr Justice Allen, with whom Ms Justice Faherty and Ms Justice Hyland agreed, affirmed the High Court order refusing an interlocutory injunction. The lenders had sought to have the Kavanaghs vacate the property and to restrain them from returning or attending there.
The High Court had found serious issues to be tried, including whether Start had become a mortgagee in possession and whether the possession order had been properly executed. The Court of Appeal said the evidence supporting the lenders’ claim that the order had been lawfully executed contained unexplained discrepancies and did not clearly establish compliance with the applicable law.
The dispute arose after a 2016 High Court order for possession of a property described as the plot of ground now known as Site No. 15 Parklands, Enniscorthy. The lenders said the Kavanaghs were removed on 20 June 2023 and returned to the property several days later. Start then brought fresh proceedings seeking permanent relief and applied for an interim injunction.
The Court of Appeal noted that Wexford’s county registrar, rather than a sheriff, was the relevant officer for executing court orders in the county. The execution order was addressed in a way that referred to both the sheriff and county registrar. The court also found that the evidence did not establish that the person described by the lenders’ witness as a court messenger had been duly authorised, or that this person had executed the order.
The court rejected the lenders’ argument that they were entitled to assume the possession order had been properly executed. It said the trial may establish that a duly authorised court messenger executed it, but the evidence filed for the interim application had not done so.
The appeal court considered the separate question of whether the possession order covered the house built on the site. It described the High Court’s conclusion that this was a serious issue as “frail”, but did not foreclose arguments at trial. It also said the property description in the execution order should have mirrored the High Court order.
The lenders’ appeal was dismissed and the High Court order affirmed. Costs of the High Court application remain reserved to trial. The appeal court provisionally indicated that Mr Kavanagh was entitled to his proper outlay and expenses, with enforcement stayed pending determination of the action; it allowed either side ten days to seek a different costs order.