The High Court has dismissed an appeal by Liam Costelloe and Gabrielle Bishop Costelloe against a Circuit Court order granting Ulster Bank Ireland Limited possession of their home at Knocknaboley, Kilmeena, Westport, Co. Mayo.
In a judgment delivered on 12 April 2018, Ms Justice Faherty affirmed the Circuit Court’s order of 19 July 2016. The judge said she would hear further submissions on whether to stay the possession order or its execution because the premises was the defendants’ family home. The judgment does not record a decision on a stay.
The bank’s claim arose from a loan facility of about €122,600 agreed in 2008. The judgment records that the defendants drew down the loan and that their last credited monthly instalment, €740, was on 25 October 2012. The bank said the defendants defaulted and sought possession under a mortgage charge over the property. The court found the defendants were in default when the possession proceedings began and that they did not deny a continuing breach of the mortgage terms.
The defendants challenged the bank’s legal status, the mortgage paperwork and the sums stated in affidavits, among other matters. They also argued that the bank’s failure to answer their correspondence prevented it from pursuing possession. The court rejected those arguments, finding the documentary and affidavit evidence sufficient to establish the bank’s existence and the charge, and finding no basis for the asserted estoppel. It said the defendants had not produced evidence to counter the bank’s figures, while the bank was seeking possession rather than a monetary award in these proceedings.
The first defendant also relied on a life assurance policy and a mortgage clause concerning endowment policies to argue that a statutory limitation provision applied. The judge found no evidence that the mortgage was an endowment mortgage or that the charged property comprised an unmatured life policy or future interest. She held that the provision did not apply to this possession claim.
On the mortgage documents, the court noted that pages 14 to 16 of the electronic loan application were missing from the bank’s file. It nevertheless found that the defendants had signed the loan offer and mortgage deed, and rejected the claims that the originals were not before the court or that the charge had been created or registered through fraud or mistake.
The judge also rejected the defendants’ arguments concerning unfair contract terms, a fair trial, the form of the Circuit Court order, non-receipt of a demand letter and their reliance on UNIDROIT. She concluded that none of the grounds advanced justified setting aside the possession order. The appeal was dismissed and the Circuit Court order affirmed, with the question of a stay reserved for further submissions.