The Court of Appeal has dismissed Jerry Beades’s appeal against orders allowing Cheldon Property Finance DAC to replace Permanent TSB as plaintiff and seek execution of a 2014 possession order over three secured properties in Fairview.
In a judgment delivered on 18 February 2021, Ms Justice Máire Whelan, with whom Justices Noonan and Haughton agreed, held that the benefit of the possession order passed to Cheldon when it acquired the mortgagee’s interest in 2015. The court said the High Court had been entitled to amend the title of the order to reflect the party then entitled to enforce it.
The underlying proceedings began in 2012. In March 2014, the High Court granted Permanent TSB an order for possession of the properties, secured by a mortgage created by Mr Beades in 2002. The loan facility made available to him was €1.778 million. An appeal against the possession order was dismissed in 2017, and the Supreme Court refused leave for a further appeal in 2018.
Permanent TSB transferred its rights and interests in the mortgage to Cheldon by deed in October 2015. In 2019, Cheldon applied to be named sole plaintiff, to amend the title of the possession order and to obtain leave to issue execution. The High Court granted those applications. Mr Beades challenged Cheldon’s entitlement, the assignment of the order, and the High Court’s jurisdiction to amend a final order. He also raised a champerty argument at the appeal hearing.
The Court of Appeal concluded, on the balance of probabilities, that the 2015 transfer included the mortgagee’s rights under the existing possession order. It said the change in interest after the proceedings began engaged Order 17, rule 4, which permits substitution following a transmission of interest. The court also held that the title amendment was procedural: it did not alter the operative terms of the possession order or reopen the final decision granting possession.
The court rejected the contention that Permanent TSB had to be notified of or consent to Cheldon’s application, given that it had transferred its interests. It also rejected the arguments that only part of the order had been assigned and that the transaction amounted to champerty. The court said Cheldon’s application for leave to execute was necessary to enforce the existing order after the change in mortgagee.
The appeal concerned who could enforce the possession order and the procedural steps needed to do so. The court did not reconsider the merits of the original possession decision or determine the precise amount due. It dismissed the appeal on all grounds. The court proposed one set of costs for Cheldon in this appeal and a related appeal and stay motion, with either party permitted to seek a brief supplemental hearing on costs within 14 days.