The Court of Appeal has dismissed Timothy Carey and Finola Colgan Carey’s appeal against orders granting Bank of Ireland possession of two properties in County Westmeath. The court held that the Bank met the requirements for possession under section 62(7) of the Registration of Title Act 1964.
The judgment, delivered by Ms Justice Whelan on 17 October 2024, concerned Folio 7693F, registered in both appellants’ names, and Folio 2513, registered in Timothy Carey’s sole name. The Bank held registered charges over both folios. The High Court had ordered possession in July 2023, with a four-month stay.
The Careys challenged the sums claimed, alleging that interest had been overcharged and that the 2016 default judgment against them was inaccurate. They also argued the Bank could not enforce the charges because it had not executed the mortgage instruments. At the appeal hearing, they sought both to overturn the possession orders and to set aside the 2016 judgment.
The Court of Appeal refused to revisit its 2018 judgment, which had reinstated the default judgment for €597,831.44 plus €396 costs. It said the Careys had not raised their interest and execution arguments in that earlier appeal, and had not established the exceptional grounds required to reopen a final decision. The court also noted the delay in obtaining an accountant’s report and that a 2019 motion to revisit the judgment had been returned with advice that it should not have been accepted. The court found no basis to disturb the 2018 orders.
On the execution argument, the judgment acknowledged there was no evidence that the Bank had executed either charge. It held that the charges were registered burdens and that the Careys had not established actual fraud, which the court said would be required to challenge the register’s conclusiveness. The court also referred to the Careys’ acceptance of a 2010 facility letter that identified the charges as securities held by the Bank.
The court concluded that the Bank was the registered owner of the charges and that its right to seek possession had arisen and become exercisable. It dismissed the appeal on all grounds and upheld the High Court’s possession orders. Costs were not finally determined: the court proposed one set of costs for this appeal and a related appeal, and invited written submissions within specified time limits before making a formal determination.