The Supreme Court has dismissed Frank and Lorna Burke’s appeal against an order requiring them to give Launceston Property Finance possession of two properties: registered land in County Galway and their family home at No. 5 Averard, Taylor’s Hill, Galway City.
The appeal concerned a High Court possession order made in March 2010. The Burkes did not dispute that they entered into the loan arrangements, that funds were advanced, that they defaulted, or that the mortgagee had a power of sale. The Supreme Court considered whether the High Court had erred in making the possession orders.
The court refused to admit new evidence and declined to hear a late argument that the mortgage description wrongly included a turning bay. It noted that the point had not been raised during the High Court case or included in the appeal notice. The judgment said any such issue would need to be pursued in appropriate proceedings at trial level.
The Burkes argued that Launceston Property, which acquired the loan rights from IBRC, was not authorised to enforce the security. The court found that Launceston Property had appointed Pepper Asset Servicing as its intermediary and that evidence before it showed Pepper was regulated by the Central Bank. It also rejected the claim that Pepper’s discussions with the Burkes, including an alleged request for the keys to the family home, amounted to unlawful steps to enforce the credit agreement.
On fees, the court held that ordinary arrangement fees were charged as a condition of lending and were not penalties for breach. The 2006 agreement contained a conditional fee that could rise from €2,000 to €20,000 if No. 6 Averard was not sold by a stated deadline. The respondent’s counsel undertook that Launceston Property would not seek to recover that €20,000, so the court did not need to determine the issue. The Burkes’ challenge to the interest rate was withdrawn. The court also said a penalty issue would not invalidate the entire contract or prevent a possession order, and that legal fees could not be challenged through penalty-clause law.
The court declined to entertain the Article 8 and related constitutional arguments, which had not been raised in the High Court or the appeal notice. It said the assignment did not increase the Burkes’ contractual obligations and found no demonstrated error in the trial judge’s consideration of the family circumstances raised, including Mrs Burke’s medical condition and dependent children living in the home. The appeal was dismissed. The Supreme Court did not make a new possession order in this judgment.