Judgment: 2023-03-28 · Court archive

High Court grants lender fresh leave to execute possession order, with two-month stay

The court allowed Start Mortgages DAC to issue execution of a 2011 possession order after finding a reasonable explanation for the delay and no prejudice to the defendants.

High Court · [2023] IEHC 155

Who, what, where, when and why

Who
  • Start Mortgages DAC (Plaintiff)
  • Mary McInerney (Defendant)
  • Garrett Simons (Judge)
What

The court allowed Start Mortgages DAC to issue execution of a 2011 possession order after finding a reasonable explanation for the delay and no prejudice to the defendants.

Where

Places mentioned in the report

  • Folio 6287F, County Clare
  • County Clare
When

Judgment:

Why

Reasons reported in the judgment

The lender had obtained leave to issue execution in February 2020 but did not execute the order. It sought fresh leave in a motion issued in November 2022. The judge focused on the explanation for the delay since the 2020 leave, which he said had already been found reasonable and was res judicata between the parties.

The High Court has granted Start Mortgages DAC fresh leave to execute a possession order concerning a property in County Clare, while imposing a two-month stay to give the first named defendant further time to pursue a personal insolvency arrangement.

Mr Justice Garrett Simons made the decision on 28 March 2023 in proceedings against William McInerney, also known as Bill McInerney, and Mary McInerney. The application concerned an order made in March 2011 requiring the defendants to deliver up possession of a property in Folio 6287F, County Clare. That order had been subject to a six-month stay.

The lender had obtained leave to issue execution in February 2020 but did not execute the order. It sought fresh leave in a motion issued in November 2022. The judge focused on the explanation for the delay since the 2020 leave, which he said had already been found reasonable and was res judicata between the parties.

The lender said it had tried to engage with the defendants in February and March 2021 to avoid a forced sale, while repayments continued, although they did not cover the monthly instalments due. It also cited a moratorium on repossessions and the fact that county sheriffs were not executing possession orders through most of 2020 and 2021 because of the coronavirus pandemic.

The judge accepted that the explanation met the threshold for a reasonable explanation. He said it was reasonable for the lender to show forbearance while repayments, though modest, were being made. No countervailing prejudice to the defendants had been asserted.

The first named defendant opposed the motion, arguing that the 2011 order was invalid because of a statutory gap before the Land and Conveyancing Law Reform Act 2013. The judge said the order could not be challenged collaterally more than a decade later, noting that the defendant had not appealed it. He also considered the defendant’s submission that regular loan payments had been made. The exhibited accounts showed that payments had not reduced the arrears, which stood at €164,899.12, and there was no indication they could be cleared within a reasonable period.

The court refused a further adjournment after an earlier adjournment had allowed time to pursue a personal insolvency proposal. It then granted the lender leave to issue execution under Order 42, rule 24 of the Rules of the Superior Courts. The two-month stay delays execution under this new order and gives the first named defendant further time to progress the intended insolvency application; the judgment does not determine the outcome of that application.

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