The Court of Appeal has dismissed Simon Kavanagh’s appeal against a High Court decision refusing his application to set aside a 2016 possession order concerning a property in County Wexford.
In a judgment delivered on 9 October 2023, Mr Justice Noonan said the application sought to revisit arguments already rejected in the original possession proceedings. Ms Justice Faherty agreed with the dismissal.
Start Mortgages DAC had brought the possession case against Simon and Deirdre Kavanagh. The mortgage, dated 3 August 2005, secured loans of €190,000 in 2005 and €65,000 in 2006. Start alleged that repayments had been in default since June 2011 and that demands for payment and possession followed. The judgment said the property appeared to be the Kavanaghs’ family home.
In July 2016, the High Court granted possession with a nine-month stay. The Kavanaghs did not appeal that order. The main defence at the time concerned the securitisation of the mortgage: Mr Kavanagh argued that Start no longer held title to it. The court rejected that argument, finding that Start remained the legal owner entitled to enforce the mortgage, although the beneficial ownership had been transferred.
In 2022, after Start applied to have the possession order issued, Mr Kavanagh sought to set it aside. The High Court refused that application in January 2023. It held that the rule he relied on, Order 124, dealt with irregularities in ongoing proceedings, not a final judgment that had not been appealed. It also found that his delay of more than six years was inordinate and inexcusable.
The Court of Appeal upheld that decision. It said the exceptional power to reopen a final judgment, under principles set out by the Supreme Court in *Greendale Developments Ltd (No. 3)*, required exceptional circumstances involving a fundamental breach of rights, arising through no fault of the applicant. Mr Kavanagh had not met that test.
The court also rejected his reliance on a later Supreme Court decision about the particulars required in debt proceedings. It said a later judgment could not, by itself, justify reopening a final case years afterward, and noted that Mr Kavanagh had not raised the point when the possession case was heard.
The appeal court’s ruling was limited to the challenge before it: it dismissed the appeal against refusal to reopen the 2016 possession order. The judgment did not make a new possession order.