The High Court has affirmed a Circuit Court order granting Haven Mortgages Ltd possession of a property in Ballintaw, Athlacca, County Limerick, and dismissed the borrower’s appeal.
In a judgment delivered on 24 October 2017, Mr Justice Noonan found that the property was the defendant’s principal private residence. Under section 3 of the Land and Conveyancing Law Reform Act 2013, the Circuit Court had jurisdiction to hear the possession claim, and it was the only court where the proceedings could appropriately have been commenced.
The case concerned a €255,000 loan advanced in October 2008. The defendant, Patrick (otherwise Pat) Keogh, was the registered owner of the lands in Folio 16925F and gave a charge over part of them, identified as Plan BHDX7, in November 2008. The charge was registered against the folio later that month.
Haven demanded repayment and possession in October 2013 after Keogh defaulted on repayments. The judgment says he had never disputed that the sums claimed in the proceedings were advanced as the lender alleged. An affidavit filed for the lender in November 2013 stated that €304,186.73 was due, including arrears of €59,215.38.
The lender began possession proceedings in December 2013. A County Registrar made a possession order in January 2015. On appeal, the Circuit Court affirmed it in October 2015, limiting the order to the part of the lands covered by Plan BHDX7. The High Court noted that the earlier County Registrar order appeared to refer incorrectly to all the lands in the folio.
Keogh appealed the Circuit Court order. His affidavits and court documents gave his abode as Ballintaw, Athlacca, and he described the property as his dwelling. The judge said there was no evidence he had another residence and concluded that the property was his principal private residence. The mortgage had been created before 1 December 2009, as required for section 3 to apply.
The parties also argued about Circuit Court jurisdiction in light of the property’s rateable valuation. The judge said it was unnecessary to decide that issue after concluding the Circuit Court had jurisdiction under section 3. He also rejected Keogh’s complaints about the reliability of the lender’s affidavit evidence, finding no substance in them.
The High Court affirmed the Circuit Court possession order and dismissed the appeal. The judgment does not state that possession was carried out.