The High Court has granted AIB Mortgage Bank judgment for €313,570 against Declan Gunning and Fiona Gunning over a loan used to buy a property stated to be for letting. The court also rejected the defendants’ application to refer a question to the Court of Justice of the European Union.
Ms Justice Reynolds delivered the judgment on 10 October 2018. The proceedings were heard on 8 May 2018. AIB had sought summary judgment, arguing that the loan remained unpaid after demands in December 2015 and July 2016.
The defendants borrowed €253,000 in 2008 under a 20-year facility. The judgment says the loan was used to purchase a property at the Glebe, Lagan, County Longford. The defendants also agreed to a mortgage over that property and a legal charge over a site at Kilglass, Lagan, County Longford.
The defendants argued that they were consumers entitled to statutory protections. Their submission was that the property was for their personal use and benefit and for their children. They also sought an EU court referral, contending alternatively that they had made a prima facie case that Council Directive 85/577/EEC applied.
AIB argued that the loan was for a buy-to-let property and that the defendants had no bona fide defence. The court considered prior decisions on when borrowers qualify as consumers, including cases where defendants had resisted summary judgment. It distinguished those cases on the evidence before it: the stated purpose here was to buy a buy-to-let property, and the defendants’ affidavits contained no averments to the contrary.
Justice Reynolds concluded that the defendants had not discharged the burden of showing they acted as consumers in relation to the loan. She found that the loan was entered into with a view to investing in a buy-to-let property for profit, making it a commercial transaction. The statutory consumer protections relied on therefore did not arise, and the application for an EU referral failed.
The court granted judgment for the claimed €313,570 against both defendants. The judgment’s conclusion does not specify a separate costs order.