The High Court dismissed G E Capital Woodchester Home Loans Limited’s claim for possession against John Reade and Dympna Reade, ruling that the lender had not demanded repayment of the full amount secured by the mortgage before bringing the proceedings.
In a judgment delivered on 12 November 2012, Ms Justice Laffoy revisited findings in an earlier judgment in the case. The lender argued that its demand letters were adequate and said it had not been given an opportunity to address the issue at the original hearing. The second defendant did not object to the court reconsidering it, and her counsel assisted at the resumed hearing. The first defendant had not entered an appearance or attended the hearing.
The judge said the lender bore the burden of proving that the requirements for an order under section 62(7) of the Registration of Title Act 1964 were met. Those requirements included that the principal money secured by the charge had become due. The court also had to be satisfied it was proper to make an order for possession.
Relying on the Supreme Court’s decision in Wise Finance Co. Ltd. v. Lanigan, Ms Justice Laffoy said the charge required a demand for repayment of all outstanding secured monies after an event of default. The court considered a precedent letter which sought payment of arrears within seven days and said repossession proceedings would follow, while stating that the entire balance had fallen due. The judge found it demanded the arrears, not repayment of the full balance.
A solicitor’s letter dated 2 February 2010 was similarly deficient. It stated that €53,317.78 was in arrears and that the full balance of €270,915.45 had fallen due, but demanded vacant possession and said proceedings would not issue if the arrears were paid. The judge held that it did not demand repayment of the principal and interest outstanding.
The lender also relied on Start Mortgages Ltd. v. Gunn. The judge said that decision did not establish that the lender was entitled to possession in the Mulkerrins proceedings, while the Grogan proceedings had failed in the absence of a demand for repayment of principal.
Ms Justice Laffoy concluded that, under the binding Supreme Court decision, the court lacked jurisdiction under section 62(7) because the secured principal had not become repayable on demand. She confirmed that an order would dismiss the possession claim against both defendants.