The High Court has granted Start Mortgages DAC leave to issue execution of a possession order made in 2011 over a property in County Dublin, after finding a reasonable explanation for the delay and no prejudice to the defendants.
Mr Justice Garrett Simons said the application concerned fresh leave under Order 42, rule 24 of the Rules of the Superior Courts. The earlier possession order, made on 7 March 2011, remained unexecuted. The current motion was issued on 27 October 2022 and heard on 20 March 2023.
The judge focused on the period after an earlier order granting leave to execute in December 2019, which was upheld on appeal in November 2020. He accepted that enforcement was not appropriate while the appeal was pending, that Start Mortgages had tried to contact the defendants to avoid a forced sale, and that a pandemic-era repossession moratorium and the suspension of sheriff executions contributed to the delay.
The court also rejected objections raised by Peter Gawley, the first named defendant, including challenges to Start Mortgages’ entitlement to the charge and complaints about the mortgage transfer and alleged overcharging. The judge said several issues had already been decided and could not be reopened in this application. He found that the evidence showed Start Mortgages was the registered owner of the charge.
Mr Gawley alleged in oral submissions that signatures on the mortgage deed had been forged. He told the court he had brought separate proceedings against Start Mortgages and wanted the original deed examined. The judge said any application to produce the deed had to be made in those separate proceedings, rather than in the execution application.
The court was satisfied that the delay had caused no prejudice to the defendants. It granted leave to issue execution of the 7 March 2011 possession order. On costs, the judge’s provisional view was that Start Mortgages should recover the motion costs from Mr Gawley; either side may file written submissions seeking a different order within two weeks.