Judgment: 2023-07-31 · Court archive

High Court adjourns mortgage possession appeal for a year

The court found that a year’s adjournment best served the parties’ interests, given the borrower’s other proceedings and the value available to protect the lender’s debt.

High Court · [2023] IEHC 482

Who, what, where, when and why

Who
  • Garry O’Brien
  • Promontoria
  • Dublin City Council
  • Ms Justice Bolger
What

The court found that a year’s adjournment best served the parties’ interests, given the borrower’s other proceedings and the value available to protect the lender’s debt.

Where

Places mentioned in the report

  • Family home
  • Ryders Row
  • Dublin
When

Judgment:

Other dates in the report
  • 29 September 2022

    The appeal concerns a Circuit Court order for possession of the O’Briens’ family home after mortgage arrears had reached €101,419.69 by 29 September 2022. The judgment said arrears would have continued to accrue after that date.

Why

Reasons reported in the judgment

The lender argued that a year was not a reasonable period under section 101 of the Land and Conveyancing Law Reform Act 2009, and sought a six-month stay on any possession order. The defendants sought a one-year adjournment. The judge said the statutory test required considering both the period sought and whether the lender’s debt would be protected or prejudiced. She found the other proceedings presented a real prospect of success, while recognising their uncertainties.

The High Court adjourned a mortgage possession appeal for one year, giving Garry O’Brien time to pursue separate proceedings that could provide funds to clear arrears on his family home. Ms Justice Bolger said the lender’s interest remained protected by the home’s value, even if those proceedings failed.

The appeal concerns a Circuit Court order for possession of the O’Briens’ family home after mortgage arrears had reached €101,419.69 by 29 September 2022. The judgment said arrears would have continued to accrue after that date.

Mr O’Brien’s separate proceedings concern a commercial premises at Ryders Row, where he ran a bicycle repair business for many years. He claims title through adverse possession against receivers appointed over the property of his former landlord, and has also brought related damages proceedings against Dublin City Council. Senior Counsel Gavin Ralston gave an opinion that Mr O’Brien had a strong claim to establish title. If successful, he could then seek compensation. Mr O’Brien put the commercial premises’ value at about €400,000; the court noted the lender had provided no competing valuation evidence.

Justice Bolger said the commercial property’s value was sufficient to cover the existing mortgage arrears and any further arrears over the next 12 months. She also noted a valuation of €450,000 for the family home. In her view, that value would protect the lender’s debt if Mr O’Brien’s other proceedings failed and the home later had to be sold.

The lender argued that a year was not a reasonable period under section 101 of the Land and Conveyancing Law Reform Act 2009, and sought a six-month stay on any possession order. The defendants sought a one-year adjournment. The judge said the statutory test required considering both the period sought and whether the lender’s debt would be protected or prejudiced. She found the other proceedings presented a real prospect of success, while recognising their uncertainties.

The judgment also refused Mr O’Brien’s application to set aside a February 2023 order substituting Everyday Finance DAC, trading as Link Financial, for Promontoria as plaintiff. His counsel confirmed he was no longer pursuing that application. The judge reserved the costs of that and earlier applications. The judgment does not decide the outcome of the possession appeal or Mr O’Brien’s separate property and damages claims.

Read the original court judgment

Something looks wrong?

Highlight the relevant passage or flag this article for review. Review requests do not immediately change the report.

Email a correction request

Request a review