The High Court has adjourned Mars Capital Finance Ireland DAC’s appeal over possession of lands to a plenary hearing, saying the evidence did not yet establish that the company owned the debt said to be secured by its registered charge.
Mr Justice Garrett Simons delivered the judgment on 2 March 2023. The appeal was a complete rehearing of a Circuit Court order made on 11 December 2019, directing the defendant, John Temple, to deliver up possession to EBS Mortgage Finance. Mars Capital was substituted as plaintiff before the appeal hearing after it said it had acquired the loan and related security.
The judge said Mars Capital, as the moving party, had to establish that it owned the registered charge and that the principal money secured by it had become due. The folio showed Mars Capital as registered owner of the charge, which the court had to accept for this possession application. A challenge to the register would require separate proceedings against the Property Registration Authority of Ireland; the judgment said none had yet been taken.
The dispute concerned the second part of the required proof: ownership of the debt. The loan agreement was made with EBS Building Society in February 2007. Mars Capital relied on a deed of transfer dated 30 April 2021, but the exhibited deed was heavily redacted. The judge said the material did not show, even on a prima facie basis, that the defendant’s debt had passed to Mars Capital. The evidence also did not adequately explain how the debt had moved between EBS Building Society and EBS Mortgage Finance.
Mars Capital argued that its status as registered charge-holder and the deed of charge were sufficient to support the possession application. The judge rejected reliance on the deed of charge alone, finding that the court should not have to speculate about whether the particular debt was secured by it. He said Mars Capital had not yet made out the proofs for possession. He also said the limited evidence did not establish the defendant’s claim that the debt had not been transferred.
The judge therefore sent the appeal to a plenary hearing so both sides could provide further evidence. He did not make a final finding on who owned the debt or grant a final possession order. The matter was listed for further directions on 20 March 2023, including possible amendment of the Civil Bill, whether the substitution order should be challenged by motion, and whether discovery was needed. The judge’s provisional view was that the defendant should receive the costs of the appeal to date.