The High Court has dismissed an appeal by Damian and Irene Gibney against an order granting Mars Capital Finance Ireland DAC possession of Dunlever Lodge in Trim, County Meath. The court affirmed the Circuit Court’s order and extended the stay on execution until it makes final orders.
Mr Justice Barr delivered the judgment on 28 July 2023. The appeal was heard de novo, meaning the respondent had to establish its entitlement to possession afresh. The Circuit Court had made its order on 27 July 2022 and stayed execution for 12 months.
At the appeal hearing, the defendants relied on two grounds. They argued that the 1999 mortgage required two signatures for a valid transfer of the charge from the original lender to Cheldon Property Finance DAC, and that the transfer was defective because it bore only one. In the alternative, they argued that the mortgage clause was an unfair contract term under the Unfair Terms in Consumer Contracts Regulations 1995.
The respondent said the clause concerned a power of attorney granted by the mortgagors and did not govern transfers of the mortgagee’s interest. It also relied on the respondent’s registration as owner of the charge on the property folio.
The court accepted that clause 18 was irrelevant to the transfer at issue: the respondent did not rely on actions taken under the power of attorney. It added that, even if the clause applied, it did not require two signatures for the bank to transfer the loan or charge. The court held that registration was conclusive evidence of ownership under section 31 of the Registration of Title Act 1964, and that it was not appropriate to go behind the register in these possession proceedings.
The court did not decide whether clause 18 was unfair, finding that question unnecessary after its conclusion that the clause did not apply. It also rejected the defendants’ claim that a promissory note had repaid the debt, accepting evidence that no payment had been received by the bank, Cheldon or the respondent.
The court was satisfied that the defendants had taken out the loan, secured it by a mortgage, failed to make repayments and that the 15-year loan term had expired. It dismissed the appeal and affirmed the Circuit Court judgment and order. The parties were given four weeks to file written submissions on the terms of the final order, costs and any other matters. The case was listed for mention on 5 October 2023.