Judgment: 2023-11-06 · Court archive

High Court strikes out most of Peter Gawley’s mortgage claim, leaving interest dispute

The court dismissed claims challenging the mortgage and earlier possession orders, but allowed an alleged interest overcharge claim to continue. It made no finding on whether that claim will succeed.

High Court · [2023] IEHC 694

Who, what, where, when and why

Who
  • Peter Gawley (Plaintiff)
  • Start Mortgages
  • Nua Mortgages Limited
  • Sandra Gawley
  • Tailte Éireann
What

The court dismissed claims challenging the mortgage and earlier possession orders, but allowed an alleged interest overcharge claim to continue. It made no finding on whether that claim will succeed.

Where

No place detail is included in this summary.

When

Judgment:

Other dates in the report
  • 8 December 2023

    In a judgment delivered on 8 December 2023, Ms Justice Emily Farrell granted Start Mortgages’ application under Order 19, rule 27 of the Rules of the Superior Courts. The order dismissed the claims in paragraphs 1 to 14 and 16 to 19 of Mr Gawley’s statement of claim. The court did not determine whether the surviving overcharging claim is valid, and said it would hear the parties before setting directions for an amended statement of claim and further pleadings.

Why

Reasons reported in the judgment

The dispute concerns a Dublin property subject to a possession order made in 2011 in earlier proceedings brought by Nua Mortgages Limited against Mr Gawley and Sandra Gawley. That order, and later orders substituting Start Mortgages as plaintiff and permitting execution, were not appealed. Earlier High Court and Court of Appeal decisions had found that challenges to Start Mortgages’ entitlement to the mortgage and to execute the possession order were barred by res judicata or issue estoppel.

The High Court has dismissed most of Peter Gawley’s claim against Start Mortgages DAC, ruling that challenges to the mortgage, the possession process and earlier court orders could not be relitigated. A claim that interest was overcharged remains before the court, which said it could not conclude on the material then available that the claim was bound to fail.

In a judgment delivered on 8 December 2023, Ms Justice Emily Farrell granted Start Mortgages’ application under Order 19, rule 27 of the Rules of the Superior Courts. The order dismissed the claims in paragraphs 1 to 14 and 16 to 19 of Mr Gawley’s statement of claim. The court did not determine whether the surviving overcharging claim is valid, and said it would hear the parties before setting directions for an amended statement of claim and further pleadings.

The dispute concerns a Dublin property subject to a possession order made in 2011 in earlier proceedings brought by Nua Mortgages Limited against Mr Gawley and Sandra Gawley. That order, and later orders substituting Start Mortgages as plaintiff and permitting execution, were not appealed. Earlier High Court and Court of Appeal decisions had found that challenges to Start Mortgages’ entitlement to the mortgage and to execute the possession order were barred by res judicata or issue estoppel.

Mr Gawley argued that he needed original mortgage and sale documents to examine their authenticity and alleged irregularities. Justice Farrell noted that he had raised related concerns in the earlier proceedings and accepted that he could have raised the documentation issue there. A separate discovery application was listed for 1 February 2024, but it was not before the judge and she made no decision on it.

The court held that claims contesting the mortgage entitlement, the earlier possession process, the transfer of the mortgage, and the original loan contract amounted to relitigation or a collateral attack on final orders. It also said Tailte Éireann was not a party to the case, and found that an amendment would not save those parts of the claim.

The remaining claim alleges that Nua and Start Mortgages charged interest by reference to the cost of funds rather than Euribor, contrary to the loan contract. The judge said that issue had not been determined in the possession proceedings. She observed that the practical value of pursuing it in the High Court was unclear, pending particulars. The judgment records that mortgage payments had not been made since June 2014; it does not decide the overcharging allegation.

Read the original court judgment

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