The High Court has reinstated Permanent TSB’s application for possession of lands and premises in Nenagh, County Tipperary, after ruling that the Master of the High Court had no jurisdiction to strike out the Special Summons.
Mr Justice Garrett Simons delivered the judgment on 28 January 2019. He discharged the Master’s order of 5 October 2018, which had been perfected on 9 October, and directed that the case be transferred to the Chancery Special Summons List for a hearing before a High Court judge.
The bank’s application is based on a 2005 mortgage and charge. The deed refers to a map identifying the property, but the version exhibited in the proceedings did not have a map attached. The bank had earlier obtained permission to amend the Special Summons to refer instead to a map associated with the deed of conveyance by which the defendant was said to have acquired his interest. The judgment records that the bank had not explained by affidavit why the mortgage deed exhibited in the proceedings lacked its referenced map.
When the case came before the Master on 5 October 2018, he raised the missing map and, according to an affidavit filed for the bank, suggested the bank might need to seek rectification of the mortgage deed. The Master then purported to strike out the Special Summons.
Justice Simons held that the Master could not decide the enforceability of the mortgage or strike out the Special Summons. Because service had been carried out under the High Court’s June 2018 order and the defendant had neither appeared nor filed an affidavit, the proceedings were in order to be transferred for a hearing. The judge relied on prior decisions addressing the limits of the Master’s jurisdiction.
The judgment did not determine the merits of the possession application. Justice Simons said the High Court would consider the missing-map issue at the full hearing. He directed the bank to file written legal submissions explaining why it could rely on the mortgage despite the absence of a map, and said the defendant would be notified of the hearing date and could make written or oral submissions. The judgment records that the property was reported vacant, but makes no finding on that account.