The High Court has proposed granting Bank of Ireland orders to enforce security over several Westmeath properties after rejecting the Carey defendants’ objections. It did not decide whether any sale should be stayed: the judge listed a further hearing on a possible stay and costs, noting that one folio may contain the defendants’ family home.
The proceedings concerned a 2010 loan facility of €532,500 and a default judgment entered in 2016 for €597,435.44 plus €396 costs. The defendants argued that interest had been overcharged and that the judgment sum was therefore wrong. They relied on an accountants’ report which they said showed the overcharge and its financing cost could have reached €16,000 by July 2019.
The judgment had been set aside by the High Court in 2017, but the Court of Appeal allowed the Bank’s appeal and reinstated it in 2018. Justice Rory Mulcahy said the current High Court proceedings could not be used to review that final judgment. Whether the exceptional jurisdiction to reopen it should be used was a matter for the Court of Appeal; the defendants had not applied there. The judge expressed no view on whether the interest had in fact been miscalculated.
In the first proceedings, the Bank sought well-charging and sale orders concerning Folios WH2639, WH16939F and WH2997, relying on a registered judgment mortgage and, for WH2639, a registered lien. The defendants also disputed whether they had received notice of the lien registration. The judge held that the register was conclusive evidence of the registered interests and that he could not look behind it. He found that the loan facility letter connected the lien to the debt in these proceedings.
The defendants argued that the Bank had waived interest in its 2016 affidavit of debt. The judge concluded that the waiver referred to contractual interest, not statutory interest. He said the affidavit had waived further contractual interest to accurately state the sum due when seeking judgment by default.
In the second proceedings, the Bank sought possession of Folios WH7693F and WH2513 under earlier mortgages. The defendants argued that the mortgage deeds were not signed or sealed by the Bank. The judge rejected that objection, finding that the deeds had been executed by the defendants and that the Bank could enforce them.
The judge said he would grant the specified reliefs in both proceedings, including sale orders and possession orders. He listed the matter for 21 July 2023 to hear the parties on any stay and on costs.