The High Court has granted receiver Kieran Wallace an order for possession of a house at Coldwater Lakes, Saggart, after finding that Philip Kershaw had no defence to the claim based on adverse possession.
Mr Justice Allen’s judgment, delivered on 4 June 2019, concerned an application for an interlocutory injunction restraining trespass. Mr Wallace had been appointed receiver over the property in 2013. The court said the house was mortgaged to Promontoria (Arrow) Limited, the mortgage was in arrears, and the mortgagee and Mr Wallace on its behalf were entitled to possession to realise the security.
Mr Kershaw had occupied the house since 2005, according to evidence the judge considered sufficient to support a case that he had been there for more than 12 years before proceedings began in July 2018. Mr Kershaw’s account of how the property was bought and built changed across his affidavits. He variously relied on payments by himself, his father and his father’s company, and on an alleged agreement with John Meade. By the hearing, he had abandoned those positions and relied on adverse possession.
The judge held that the occupation could not, in law, be adverse to the mortgagee. The loans had been refinanced and acknowledged in 2009, within 12 years of the action. The judge also found no bona fide issue for trial as to whether Mr Kershaw’s occupation was adverse to Mr Meade: on the different accounts advanced, he occupied under Mr Meade’s agreement or licence.
Mr Kershaw’s wife, Michelle Corcoran Kershaw, was not a defendant. The judge noted that she had not asserted an interest in the property and considered her occupation to have been with her husband’s permission. Her position could not alter the conclusion about the mortgagee’s title.
The receiver had waited from his appointment in 2013 until proceedings were issued in 2018. The judge acknowledged the delay and the high threshold it created for interlocutory relief, but concluded there was no issue to go to trial and granted the order sought. The court said the fact that the Circuit Court could have heard the action might be relevant to costs.