The High Court has dismissed Simon Kavanagh’s application to discharge an order changing the plaintiff’s title in possession proceedings involving a property in Enniscorthy, County Wexford.
In a judgment delivered on 11 April 2019, Mr Justice Garrett Simons held that Start Mortgages Ltd’s conversion to Start Mortgages Designated Activity Company (DAC) did not create a new company or transfer ownership of the loan or security. Section 63(12) of the Companies Act 2014 allows proceedings to continue in the company’s new status, he said, and a formal court application to reflect the change was not strictly necessary.
The proceedings began in 2013. In July 2016, the High Court ordered Simon and Deirdre Kavanagh to deliver possession of a plot known as Site No. 15 Parklands, Enniscorthy, to the plaintiff. A nine-month stay on execution was granted. Start Mortgages Ltd converted to a DAC in October 2016.
In February 2018, the company obtained an ex parte order amending the title of the proceedings to name Start Mortgages Designated Activity Company. Kavanagh later sought to have that order discharged or varied. He argued, among other things, that the original company had ceased to exist, that the lender’s title or charge had not been registered in the new name, and that the title could not be changed after a possession order had been made.
The judge rejected those objections. He said the company continued in existence after re-registration, and that the amendment was technical and did not alter the substance of the possession order. He also accepted the use of an “omnibus” application relying on one affidavit across 12 High Court cases, given that the evidence of re-registration was uncontroversial.
The original 2018 order had been made under Order 17, rule 4 of the Rules of the Superior Courts. Justice Simons said that rule did not fit because there had been no transfer of interest and no new party. He varied the order to say it was made under the court’s inherent jurisdiction, having regard to Section 63 of the 2014 Act, and removed wording that suggested a change or transmission of interest had occurred.
He also confirmed a correction to the order’s mistaken reference to Deirdre Murphy, which was amended to Deirdre Kavanagh in April 2018. The court dismissed Kavanagh’s application to discharge the order. The judgment did not revisit or change the substance of the 2016 possession order.