The High Court ordered that the defendants’ costs of an interlocutory motion over the sale of an Enniscrone apartment be costs in the cause. The motion was withdrawn after the sale completed, and the court made no decision on the underlying dispute about what loans the property secured or whether the plaintiffs could have redeemed the mortgage.
Patrick Munnelly and Anne McGlynn had sought an order requiring receivers Ken Fennell and James Anderson to give up possession of 12 Marine Lighthouse, Enniscrone, and an injunction preventing the defendants from marketing or selling it. The property was sold on 21 May 2021. The plaintiffs had applied for an interim injunction on 17 May; that application was refused, though they were allowed to give short notice of a motion for interlocutory orders. They withdrew the motion after the sale had completed. The judgment, delivered by Mr Justice Allen on 5 October 2021, addressed only its costs.
The dispute arose from a charge the plaintiffs granted over the Enniscrone property in 2000. The plaintiffs argued that it secured their Enniscrone loan alone, while the first defendant, Start Mortgages Designated Activity Company, maintained that the charge covered later advances, including a 2007 loan taken by Munnelly to help buy two apartments in Athlone. The plaintiffs also alleged that they had been told they could redeem the Enniscrone mortgage by paying its outstanding balance. These were disputed issues, not findings made on the costs motion.
Justice Allen said the plaintiffs had known by 1 April 2021 at the latest that contracts had been exchanged, and had not shown evidence of trying to perform the alleged redemption agreement. He considered that the application came too late to prevent the sale. He also rejected the suggestion that the sale made the motion moot: the plaintiffs continued seeking a replying affidavit after being told the sale was complete, and withdrew only after receiving it.
However, the judge said the plaintiffs had a good argument that the Rockbrook loan was not secured on the Enniscrone property and had raised a fair question about whether Start Mortgages’ position impeded their ability to redeem. Whether they were entitled and able to redeem, and whether the property ought to have been sold, remained for the trial. If the plaintiffs establish that the property secured only the Enniscrone loan and that they could have redeemed it, the judge said it would not be just to make them pay the defendants’ motion costs. If the defendants are found entitled to sell, they should have those costs. The order therefore makes the defendants’ motion costs costs in the cause; it does not decide the underlying claims or allocate those costs finally.