The High Court rejected Elizabeth Floyd’s challenge to a possession claim over a public house, shop and home in Tulla, Co Clare, finding she had not established that the mortgage was an unconscionable bargain.
Secured Property Loans Limited brought the claim as mortgagee. The case reached the High Court after the Master adjourned it to a plenary hearing and gave directions for pleadings. The judge said no factual issue required oral evidence and that deciding the appeal should determine whether possession should be ordered, subject to the lender filing a required affidavit if successful.
The court amended the special summons to remove reliance on section 62(7) of the Registration of Title Act 1964, which the judge said did not apply because the land was unregistered.
Floyd borrowed €125,000 under a 12-month agreement accepted in January 2008. The stated annual percentage rate was 19.41%; €8,750 in fees was to be deducted at drawdown, leaving net proceeds of €116,250. The mortgage was executed in February 2008. She paid three monthly interest instalments of €1,875 and a further €3,780 in August, then made no further payments, according to the judgment.
Floyd argued that the interest rate was oppressive and unconscionable, and that the court could modify or set it aside. She said financial difficulty had left her with limited borrowing options and that she planned to refinance. She also relied on deteriorating health and difficulties renewing the pub’s liquor licence. The court recorded that she had received independent legal advice and signed documents acknowledging the loan terms.
The judge found that the special equitable protection considered in earlier cases involving borrowers who mortgaged reversionary interests did not apply: Floyd had mortgaged a freehold interest in possession. On the broader unconscionable-bargain argument, the judge accepted that her options for raising capital were limited but found that she made a commercial decision with independent legal advice. No comparative evidence of other lenders’ rates had been provided, and the judge said the evidential burden on that issue rested with Floyd.
The court concluded that Floyd had not shown grounds to prevent the lender from obtaining possession. It did not state in the judgment that a final possession order had issued; it said that if the lender succeeded on the appeal, an affidavit required by court rules still had to be filed. The judgment also records that the court was told, without affidavit evidence, that about €201,000 was then due, and says the court had no jurisdiction to grant relief from the high interest payable.