O'Mahony v Start Mortgages Designated Activity Company; O'Mahony v Start Mortgages Designated Activity Company; Start Mortgages Designated Activity Company v O'Mahony

• Jurisdiction: Ireland
• Judge: Mr. Justice Mark Heslin
• Judgment Date: 04 November 2022
• Neutral Citation: [2022] IEHC 629
• Court: High Court
• Docket Number: Record Number: 2018/484 CA Record Number: 2020/10 CA

Between

Rosarie O'Mahony

Plaintiff

and

Start Mortgages Designated Activity Company

Defendant

Between

Rosarie O'Mahony

Plaintiff

and

Start Mortgages Designated Activity Company

Defendant

Between

Start Mortgages Designated Activity Company

Plaintiff

and

Rosarie O'Mahony

Defendant

[2022] IEHC 629

Record Number: 2018/484 CA

Record Number: 2018/510 CA

Record Number: 2020/10 CA

THE HIGH COURT

Substitution order – Order for possession – Extension of time – Defendant seeking to set aside a substitution order and an order for possession – Whether the plaintiff was the owner of the relevant charge

Facts: Seven applications listed for hearing all related to Circuit Court proceedings to secure the possession of property commonly known as Goggins Hill, Ballinhassig, Co. Cork (the property). The relevant civil bill for possession was issued out of Cork Circuit Court on 19 May 2017 by Permanent TSB plc (formerly Irish Life & Permanent plc) (PTSB). The single application bearing record number 2020/10CA comprised the notice of appeal of the defendant, Ms O’Mahony, with respect to an order substituting Start Mortgages DAC (Start DAC) for PTSB, as plaintiff in the Circuit Court proceedings. Despite the absence of the defendant, it proceeded by way of a de novo hearing. The first of the three applications bearing record number 2018/510CA comprised the defendant’s application to set aside the substitution order made in the High Court (Meenan J). The second application under record number 2018/510CA comprised the defendant’s appeal against the 2 October 2018 Circuit Court order for possession. The matter proceeded as a de novo appeal, despite the absence of the defendant. A third application bearing record number 2018/510CA comprised Start DAC’s appeal against the order made by the Master which extended time for the bringing of an appeal against the Circuit Court’s possession order. The first of the applications bearing record number 2018/484CA related to the substitution of Start DAC. The second application bearing record number 2018/484CA related to Start DAC’s appeal of an order by the Master extending time for the making of an appeal against a “Circuit Court costs order dated the 2nd day of October 2018” whereas no such order was ever made. Finally, the third of the three applications bearing record number 2018/484CA comprised the defendant’s appeal in respect of an order which was never made.

Held by the High Court (Heslin J) that the evidence before the court put beyond doubt that Start DAC was the owner of the relevant charge; that the right to seek possession arose; and was exercisable on the facts. Heslin J held that no issue was disclosed by the evidence which would render a plenary hearing necessary. He held that the attempts to oppose the possession claim fell short of anything which could conceivably constitute stateable grounds of defence. He held that the relevant proofs had been made out comprehensively and in a manner which ruled out any legal or factual basis upon which the possession claim could be dismissed, even if the matter went to a plenary hearing (something which the interests of justice did not require). He held that there was no conceivable basis for a valid challenge to the substitution application. He held that by virtue of being the sole registered-owner of the relevant charge, Start DAC was the one and only appropriate plaintiff.

Heslin J dismissed the single application bearing record number 2020/10CA. He dismissed the first of the three applications bearing record number 2018/510CA. Regarding the second application under record number 2018/510CA, he was entirely satisfied that Start DAC was entitled to possession. Applying Eire Continental Trading Company v Clonmel Foods [1955] I.R. 170, he held that the third application bearing record number 2018/510CA must be allowed and the Master’s order set aside; the defendant had no stateable grounds for a defence to the possession claim. Regarding the first of the applications bearing record number 2018/484CA, he held that the substitution of Start DAC for PTSB was entirely appropriate. He held that the second application bearing record number 2018/484CA must be allowed and the Master’s order set aside. He held that the third of the three applications bearing record number 2018/484CA was entirely misconceived and must be dismissed. His preliminary view was that there were no facts or circumstances which would merit a departure from the “normal” rule that “costs” should “follow the event”.

Case decided in favour of the plaintiff.

Judgment of Mr. Justice Mark Heslin delivered on 4 ^th November 2022

Introduction

1 . Several matters were listed for hearing (two days) commencing on Tuesday 18 October 2022, having appeared in a callover which took place the previous week on 13 October. Ms. O'Mahony (hereinafter “the defendant” unless otherwise stated) was on notice of the callover and of the hearing. She did not participate in the callover and did not appear at the hearing.

2 . Shortly before 3 p.m. on 17 October 2022, the defendant sent an email to the Courts Service wherein inter alia the defendant confirmed that had been notified on the evening of 12 October of the callover which would take place the following day. As well as making a complaint with regard to notice to her, she suggested that the hearing listed for the 18 and 19 October was an attempt “ to ambush me again in court”.

3 . A response was sent to the defendant by a court Registrar, wherein the defendant was advised that she should attend court on the 18 October to explain her position to the judge, and the defendant was also advised to contact the other side.

4 . At approximately 11 a.m. on 18 October, I was furnished with a copy of a document entitled “Notice to seek adjournment until Circuit Court case is complete” (the “Notice”). Although bearing the date of 16 October 2022, I was not furnished with a copy until the case was due to commence. I proceeded to consider the defendant's application to adjourn, even though the defendant had not attended court, even to move such an application.

5 . The defendant's attitude is made very clear on the first page of the Notice, wherein she stated inter alia that:-

“ … wild horses wouldn't drag me to Dublin tomorrow. I cannot and will not be a willing participant in another trial by ambush”.

6 . On 18 October, I delivered a detailed ex tempore ruling in which I refused the defendant's application to adjourn.

Seven matters for hearing

7 . Although there were no less than seven matters listed for hearing, it is fair to say that they all relate to Circuit Court proceedings to secure the possession of property commonly known as “Goggins Hill, Ballinhassig, Co. Cork” and which is described in the Schedule to the relevant civil bill for possession as being “All that and those, the hereditaments, premises and appurtenances comprises in Folio 101 214 F of the Register of Freeholders, County of Cork” (hereinafter “the property”). The relevant civil bill was issued out of Cork Circuit Court on 19 May 2017 by “Permanent TSB plc. formerly Irish Life & Permanent plc” (hereinafter “PTSB”).

Circuit Court possession order — 2 October 2018

8 . Ultimately, an order for possession was granted in favour of PTSB on 02 October 2018. A copy of that order was before this Court, and for the sake of clarity and completeness, it is appropriate to quote its terms verbatim and in full:-

“ The defendant having been duly served with the Civil Bill for Possession herein and the same coming before this Court this day.

WHEREUPON and on reading the pleadings and documents filed herein and on hearing what was offered by Solicitor for the Plaintiff, and the Defendant appearing in person.

AND it appearing to the Court that the Plaintiff is entitled to possession of the premises as claimed in the Civil Bill.

THE COURT DOTH ORDER:-

• 1. Grant Order for Possession of ALL THAT AND THOSE the hereditaments, premises and appurtenances comprised in Folio 101 214 F of the Register of Freeholders County of Cork.

• 2. Grant stay of nine months on execution for possession”.

9 . Among the matters listed for hearing before this Court was the defendant's appeal against the aforesaid possession order. In addition, the defendant challenged the making of a “substitution” order, on 12 December 2019, pursuant to which His Honour Judge O'Callaghan, sitting in Cork Circuit Court, ordered the amendment of the title of the plaintiff to read “Start Mortgages Designated Activity Company” (hereinafter “Start DAC”) and the Circuit Court also ordered that all future proceedings in the matter be carried on as between Start DAC, as plaintiff, and the defendant. The Circuit Court dispensed with the requirement to re–serve the proceedings and directed service of its 12 December 2019 order within four weeks.

10 . The relief at para. 3 of the plaintiff's motion dated 24 July 2019 sought an order granting Start DAC leave to issue execution in respect of the Circuit Court's 02 October 2018 possession order. On 12 December 2019 the Circuit Court adjourned that relief. This is entirely understandable in circumstances where the defendant appealed the possession order. Before making reference to any other applications which were listed for hearing, it is appropriate to note that, even though the defendant declined to attend, a de novo hearing took place in respect of the application for substitution. It is convenient to look at that matter first.

Substitution

11 . In an affidavit sworn on 24 July 2017, Mr. Eamonn MacEoin, a summons server who was retained by Messrs Eversheds Sutherland, solicitors for PTSB, made inter alia the following averment:-

“ 3. I say that at approximately 6: 24 p.m. on 23 June 2017, I did personally serve a cover letter dated 08 June 2017, a certified copy of a Civil Bill for Possession issued on 19 May...