Judgment: 2019-12-10 · Court archive

High Court gives KBC more time to appeal possession ruling

The court allowed KBC Bank Ireland to serve and file an appeal notice out of time, citing confusion over the Circuit Court’s order. It did not decide the possession appeal itself.

High Court · [2019] IEHC 838

Who, what, where, when and why

Who
  • KBC Bank Ireland plc (Plaintiff)
  • John Cronin
  • Nicola Coffey Cronin (Defendant)
  • Max Barrett (Judge)
What

The court allowed KBC Bank Ireland to serve and file an appeal notice out of time, citing confusion over the Circuit Court’s order. It did not decide the possession appeal itself.

Where

No place detail is included in this summary.

When

Judgment:

Why

Reasons reported in the judgment

At the Circuit Court hearing on 14 June 2016, the defendants opposed possession. Their counsel relied primarily on KBC’s earlier refusal to consent to a voluntary sale and what the defendants viewed as a lack of constructive engagement. The High Court said the Circuit Court appeared to regard KBC’s request for possession as unreasonable because a sale order had already been made in separate family proceedings to which the bank was not a party. KBC’s position, as described in the judgment, was that a purchaser might not proceed without an order for possession because the property secured a loan in long-term default.

The High Court has extended the time available to KBC Bank Ireland plc to appeal a Circuit Court order refusing possession of a property belonging to John Cronin and Nicola Coffey Cronin. The decision allows KBC to serve and file a notice of appeal against the whole Circuit Court order; it does not determine that appeal or grant possession.

Mr Justice Max Barrett made the order on 10 December 2019, allowing an application that the Master had dismissed in June 2017. The underlying possession proceedings began with a civil bill dated 30 June 2014, seeking, among other relief, possession of the defendants’ principal private residence.

At the Circuit Court hearing on 14 June 2016, the defendants opposed possession. Their counsel relied primarily on KBC’s earlier refusal to consent to a voluntary sale and what the defendants viewed as a lack of constructive engagement. The High Court said the Circuit Court appeared to regard KBC’s request for possession as unreasonable because a sale order had already been made in separate family proceedings to which the bank was not a party. KBC’s position, as described in the judgment, was that a purchaser might not proceed without an order for possession because the property secured a loan in long-term default.

The High Court accepted that genuine confusion arose about what the Circuit Court had ordered. The drawn order appeared to refuse possession and reserve costs, while also allowing the matter to return to court. KBC’s solicitor said the order was received after the ten-day period for filing an appeal notice had expired. Justice Barrett observed that KBC could have returned to the Circuit Court judge within that period to seek clarification, but held that this was not fatal to the application.

Applying the principles for extending appeal time, the judge found that KBC had formed an intention to appeal within the relevant period, that the confusion over the order was understandable and ultimately attributable to the Circuit Court, and that an arguable appeal existed. The potential appeal concerned whether the Circuit Court could have refused possession in light of the affidavit evidence before it.

The judge also rejected the assertion that KBC had frustrated a sale to benefit from accruing interest, saying there was no evidence to support it. He ordered an extension of time for KBC to appeal the whole Circuit Court order. The possession question remains for any appeal to address.

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