The Court of Appeal has dismissed Peter Gawley’s appeal against a High Court order allowing Start Mortgages DAC to issue execution on a 2011 possession order. The appeal concerned permission to enforce the order after more than six years, not a fresh decision on whether possession should originally have been granted.
The court, in a judgment delivered by Ms Justice Donnelly on 30 November 2020, held that the High Court had correctly applied the principles in Smyth v Tunney. Those principles require an explanation for the delay and consideration of any countervailing prejudice; they do not require an unusual or exceptional reason for late execution.
The possession order was made in favour of Nua Mortgages Limited in March 2011, after Mr Gawley defaulted on a residential remortgage loan secured against his property. No appeal was lodged against that order. The Supreme Court refused his later application to extend time to appeal in July 2014.
Start Mortgages acquired rights to the loan and security. In October 2016, after a contested hearing, the High Court allowed it to be substituted as plaintiff and granted leave to execute. Those orders, and a 2018 order reflecting the company’s re-registration as a designated activity company, were not appealed. Start Mortgages sought leave again in August 2019 because six years had elapsed since the possession order.
The High Court accepted evidence that Start Mortgages had engaged with Mr Gawley and his wife about alternatives to enforcement, including an assisted voluntary sale or supported voluntary surrender. It found the delay reasonable and no prejudice identified from the period between the 2016 order and the 2019 application. The Court of Appeal agreed, noting that the couple had remained in the property and that no mortgage payments had been made since June 2014.
Mr Gawley argued, among other things, that Start Mortgages was not entitled to the charge and that he and his wife had suffered significant financial and personal prejudice. The Court of Appeal held that the entitlement and transfer issues had already been decided and could not be reopened in this appeal. It also rejected attempts to challenge the 2011 possession order, which had not been appealed in time. The court said the claimed prejudice was unsupported by evidence.
The court dismissed the appeal. It did not make a final costs order in the judgment: it gave Mr Gawley 14 days to seek a short further hearing on costs. If he did not apply, an order for the respondent’s appeal costs would be made as proposed.