The High Court dismissed Thomas Wallace’s appeal over an order allowing Start Mortgages DAC to replace Permanent TSB as plaintiff and seek execution of a possession order against 34 Hartlands Road, Glasheen. The court affirmed the lender’s leave to execute the 2015 order insofar as it concerned that property. It did not extend the order to 33 Hartlands Road, and final orders and costs had not yet been settled when judgment was delivered.
The appeal was heard de novo, meaning the High Court reheard the application for substitution and execution. The original possession order was made on 24 June 2015. Start Mortgages applied to be substituted after the bank transferred the loan and mortgage to it in 2019; the Circuit Court granted substitution and leave to execute in January 2022.
Wallace argued that the mortgage documents wrongly used the name “Avonrea” for number 34. He said that name belonged to his family home at number 33, while number 34 was known as “Lough View”, and that the error could make it appear the security covered both properties. He also disputed the lender’s entitlement to enforce the possession order and complained that proceedings had prevented him from renting number 34.
The court found that Wallace intended to mortgage number 34. It relied on the loan application and approval documents, which identified that address, and on the mortgage deed, which also referred to number 34 but added “Avonrea”. The court said it made no finding on whether Wallace’s former solicitor had added the wrong name. It found that any such error did not affect the mortgage’s validity or the 2015 possession order.
The lender’s affidavit stated that its security covered number 34 only, that it made no claim to number 33, and that neither it nor the bank held title deeds for number 33. The judge said the interest certificates referring at different times to “Avonrea” and “Lough View” showed addresses where Wallace was thought to live, not which property secured the mortgage.
The court also ruled that Wallace’s complaint about the debt increasing while number 34 was vacant was not a ground to refuse the relief sought in this application; he could pursue that matter in another forum. The judgment proposed dismissing the appeal and affirming the Circuit Court orders. It invited written submissions on the final order, costs and other matters within two weeks, with the case listed for mention on 22 March 2023.