The High Court held that EBS Limited had acquired a right to seek possession of a shop and filling station in County Donegal before the repeal of the statutory provision it relied on. The court said it would make a possession order once several outstanding matters were addressed; the judgment does not record that a final order was made.
EBS sought possession under section 62(7) of the Registration of Title Act 1964, as amended in its proceedings. The property comprises all of Folio 38596 and the portion of Folio 36513 marked Plan 18 JG. The defendant had charged the lands to EBS in 2002. The case began by special summons in January 2011, after section 62(7) had been repealed, so the central question was whether EBS had acquired the right to seek possession before the repeal took effect on 1 December 2009.
The judge found that the charge had become enforceable after the defendant defaulted on payments. Under its terms, EBS could take possession once the security was enforceable, and the date for redemption for a sale was treated as having occurred immediately after the charge was signed. The court concluded that EBS had acquired the right to seek possession before repeal and could bring proceedings to enforce it under the Interpretation Act 2005.
The defendant challenged the demand for repayment and argued that EBS’s later six-month interest-only arrangement had undone or waived that demand. The judge said no prior demand was needed under the charge to enforce the security or exercise the sale power. She nevertheless found the May 2009 letter was a valid demand. The January 2010 arrangement postponed enforcement, but did not waive EBS’s rights arising from the default; the letter provided for a review after six months.
The judgment says the defendant’s earlier allegations about reckless lending were not pursued at the hearing. A separate claim for a money judgment was also not pursued. The court did not resolve a discrepancy between account figures in the evidence, noting it did not need to decide that issue on the application.
Before making the possession order, the judge required a corrective affidavit of service, clarification of an affidavit statement about the defendant’s wife being habitually resident at the property, the two loan offer letters to be exhibited, and a review of the balances due on both accounts. The judge also expressed concern that EBS had charged the defendant costs for earlier High Court proceedings that were never served. Further submissions were to be heard on the costs of the current case and whether a stay should be granted.