The High Court has dismissed Samuel Walsh’s appeal against an order giving Mars Capital Finance Ireland DAC possession of Ballyvadden House, Kilmuckridge, County Wexford. Mr Justice Barr affirmed the Circuit Court order of 12 June 2024, with a three-month stay on its execution from 15 November 2024.
The appeal concerned a loan Walsh took from the Educational Building Society (EBS) in 2003, secured by a mortgage over the property. Walsh accepted that, apart from two payments made in 2023 under a settlement agreement, he had made no loan repayments since 2007. EBS transferred the loan and mortgage to Mars Capital in 2021. The company began possession proceedings in August 2022.
Walsh challenged the possession order on three grounds. He argued that the Circuit Court hearing should not have proceeded because the proceedings had not been formally served on his mother, whom he said had lived at the property for many years. He also argued that the transfer from EBS was void under section 26 of the Building Societies Act 1989, and that the mortgage claim was barred by the Statute of Limitations.
The High Court rejected the service challenge. The judge accepted evidence that attempts to serve Walsh at the property had not revealed who else might live there. His mother had not been formally served, but the court found she knew of the proceedings: she wrote to the court seeking an adjournment, and her daughter later sought a further adjournment on her behalf. The judge said the purpose of Practice Direction 17 had been met in the circumstances, and that Walsh could not raise a requirement intended to protect other occupants when no one had raised it on his mother’s behalf.
The judge also held that section 26 concerns a mortgagee’s duty, when selling mortgaged land, to take reasonable steps to obtain the best price. It did not govern EBS’s transfer of the loan and mortgage to another lender. The mortgage conditions permitted assignment, and Walsh did not challenge EBS’s power to assign.
On limitation, the judge observed that the relevant statutory provisions could extinguish a mortgage after 12 years. But Walsh had signed a settlement agreement on 10 March 2023, acknowledging the debt and providing that Mars Capital could seek possession if he defaulted. The judge held that the agreement prevented Walsh from relying on the limitation defence. Walsh did not comply with the settlement repayment schedule.
The court dismissed the appeal, affirmed the possession order and the Circuit Court costs order, and awarded the appeal costs to Mars Capital, subject to adjudication if not agreed. The parties were given two weeks to make written submissions on the final order and costs. The case was listed for mention on 3 December 2024.