The High Court has allowed an appeal by Coleman Flavin and dismissed proceedings brought by Promontoria (Finn) Ltd seeking possession of lands in Youghal, County Cork. Mr Justice Garrett Simons set aside the Circuit Court’s possession order after finding the lender had not produced the mortgage deed or otherwise proved that the mortgagee’s right to possession had arisen.
The proceedings concerned an old-style mortgage over unregistered land, said to have been created in January 2001 between Flavin and First Active plc. The lender relied on a memorial recording the mortgage’s date, parties and property description, but the memorial did not set out the mortgage terms. The loan agreement exhibited by the lender was unsigned.
The lender argued that an old-style mortgage gives a mortgagee an inherent right to possession and that the court could infer the deed allowed possession in the event of significant arrears. It said the outstanding balance when proceedings began was €171,446.96. The judge held that the right could be limited by the mortgage terms, which had to be proved. He said the court could not speculate about those terms or require the defendant to disprove a right to possession before the lender established a prima facie case.
Flavin had sought discovery of the mortgage deed. The judge noted that the lender had not said on affidavit that the deed was lost or unavailable, and had not offered secondary evidence of its terms beyond the memorial.
The judge considered whether to adjourn the case to a plenary hearing, but concluded that the proceedings could be dismissed because the lender had not made out even a prima facie case for possession. Since that was sufficient to decide the appeal, he did not determine whether the lender had established that First Active’s interest in the mortgage had been transferred to it.
The court’s proposed costs order was that Flavin receive his costs. The lender had seven days to notify the registrar if it wished to argue for a different order; otherwise, the order would be perfected on that basis. The judgment addressed old-style mortgages over unregistered land and did not decide the rules for other types of mortgages or whether secondary evidence could suffice where a deed is missing.