The High Court has refused Carlisle Mortgages Limited’s application to renew a possession order after the order’s renewed term had expired. Ms Justice Dunne held that any further renewal had to be obtained while the renewed order remained in force. She said the lender could seek a new execution order through the usual process, but it would not retain the original order’s priority.
The application concerned lands in Tooreen, County Limerick, comprised in Folio 16861 F. A possession order was made in June 2008 under section 62(7) of the Registration of Title Act 1964. After a stay of five months, the lender obtained an order of possession, which was renewed in July 2011 for one year. That renewed order expired in July 2012.
Attempts to execute the order were postponed on earlier occasions. The judgment records that €15,000 was paid before an attempt in September 2010, after which the order was returned to the lender’s solicitors. No further payments were made. In February 2012, execution did not proceed because livestock had not been removed from the lands. In June 2012, a court messenger attended with Gardaí and security personnel, but the order was again not executed. The judgment describes the defendant’s conduct that day, including flying a microlight and driving a tractor around the lands, as obstructive.
The lender’s renewal motion was issued in February 2013, months after the renewed order expired. The defendant argued that a second or subsequent renewal had to be sought during the term of the existing renewed order. The lender disputed that interpretation.
Justice Dunne considered the wording of Order 42, rule 20 of the Rules of the Superior Courts, which permits renewal “from time to time during the continuance of the renewed order”. She applied the interpretation of similar wording in Order 8, rule 1, adopted in an earlier High Court decision, and found no material difference between “currency” and “continuance” in the two rules.
The court also said an application to renew an execution order must be made on notice to the parties concerned. It disagreed with part of the reasoning in Wymes v Tehan about ex parte renewal applications, while distinguishing that procedural issue from the question of when a subsequent renewal must be sought.
Because the application came after the renewed order had expired, the court refused the renewal. The ruling did not prevent the lender from seeking a new possession order in the usual way; the consequence identified by the court was loss of priority over any other execution order affecting the property.