The High Court found Janette Simpson and Holly Simpson were trespassing at a Monaghan property after Start Mortgages took possession under a court order. Mr Justice Kennedy said the lender had established a strong case for an injunction restraining the trespass. The judgment did not grant a stay automatically: it said one could be considered if the defendants accepted the lender’s entitlement to possession and gave an undertaking to leave by an agreed date.
The case concerned a property known as Bryanlitter, Clontibret, comprised in Folio MN20535F. Start Mortgages sought an injunction against the first and second defendants; it sought no relief against the third defendant, described in the case title as any person in occupation.
The lender’s predecessor made a refinancing loan to Janette Simpson in 2007, secured by a mortgage over the property. After mortgage defaults, Start Mortgages brought possession proceedings in the Monaghan Circuit Court in 2018. That court made an order for possession on 11 February 2022, with a six-month stay. An execution order followed on 20 September 2022 and was executed on 24 March 2023. The judgment said the defendants then unlawfully re-entered and continued to occupy the property.
The defendants argued that the lender should have considered proposals to resume payments and that a term should be implied into the contract requiring it to entertain reasonable proposals. They also relied on the property’s status as a family home and argued that damages would adequately protect the lender. The judgment records the lender’s submission that the debt was €288,010.70, including arrears of €118,490.05 as of 16 November 2023.
Mr Justice Kennedy held that the defendants had not established a serious issue to be tried over an implied contractual term or any legal or equitable interest entitling them to possession. He said the lender had lawfully taken possession and was entitled to remain in possession. The court also found the defendants’ recent payment proposals unrealistic and the property in negative equity, contrary to their submissions.
The court said questions about the balance of convenience and adequacy of damages did not arise because the defendants had not established an arguable claim to possession. It nevertheless said that, if those questions had arisen, both would have favoured the lender. The judgment directed that the injunction be granted.
Start Mortgages indicated it would not object to a limited stay, with 31 January 2024 proposed for consideration as a departure date. The court said any stay would require an unequivocal acknowledgment that the lender was lawfully entitled to possession and an express undertaking to vacate by the agreed date and not re-enter or obstruct the lender. The judgment does not record that such an undertaking was given or that a stay was made.