Start Mortgages DAC v Hendrick

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 16 January 2023
• Neutral Citation: [2023] IEHC 11
• Court: High Court
• Docket Number: 2009 No. 921 SP

Between

Start Mortgages DAC

Plaintiff

and

James Hendrick

Eileen Hendrick

Defendants

[2023] IEHC 11

2009 No. 921 SP

THE HIGH COURT

Order for possession – Leave to issue execution – Order 42, rule 24 of the Rules of the Superior Courts – Plaintiff seeking leave to issue execution in respect of an order for possession – Whether the plaintiff had met the threshold of establishing a good reason which explained the failure to execute the order for possession

Facts: The High Court (McGovern J) made an order on 11 October 2010 directing the defendants, Mr and Ms Hendrick, to deliver up possession of the property comprised in Folio 23512F, County Wexford (the order for possession). The order for possession was subject to a stay on execution for a period of six months. The High Court (Gilligan J) made an order on 25 April 2016 substituting Start Mortgages Ltd as plaintiff in the proceedings and giving that company leave to issue execution on foot of the order for possession. On 14 October 2019, counsel for the plaintiff applied for leave to issue execution pursuant to Order 42, rule 24 of the Rules of the Superior Courts. The High Court (Simons J) was satisfied that the legal test for the grant of leave, as per Smyth v Tunney [2004] IESC 24, had been met, and, accordingly, granted leave to issue execution. Simons J also made an order reflecting the fact that the plaintiff was a designated activity company. The plaintiff made an ex parte application on 3 October 2022 for directions in respect of a further application for leave to issue execution. The plaintiff was anxious to ensure that the application for leave should be made returnable before the High Court prior to the expiration of twelve years from the date of the order for possession of 11 October 2010. Simons J directed that the motion be made returnable to 10 October 2022. On the return date, the motion was adjourned for hearing to 7 November 2022. The motion duly came on for hearing on that date. On that date, an application for an adjournment was made on behalf of the first defendant. The motion was put back to 12 December 2022, with a direction that it be listed peremptorily for hearing on that date. The purpose of the adjournment had been to allow the defendants one final opportunity to make a proposal for a personal insolvency arrangement pursuant to the Personal Insolvency Act 2012. On the scheduled hearing date, the first defendant sought a further adjournment to allow time for an application for a protective certificate pursuant to Part 3, Chapter 4 of the 2012 Act to be pursued. Simons J refused the application for an adjournment and directed that the hearing of the motion should proceed. Having heard submissions on the motion, Simons J reserved judgment until 16 January 2023.

Held by Simons J that the plaintiff had met the threshold of establishing a good reason which explained the failure to execute the order for possession. He was also satisfied that the delay in executing the order for possession had not caused any prejudice to the defendants. He found that the legal test for granting leave to issue execution, as per Smyth v Tunney, had therefore been met. Simons J proposed granting the plaintiff leave to issue execution, pursuant to Order 42, rule 24, in respect of the order for possession of 11 October 2010.

Simons J would hear the parties further on the question of whether a stay should be imposed on the proposed order so as to allow the defendants to progress the intended application for a personal insolvency arrangement. Simons J would also hear the parties on the question of costs. The matter would be listed before him on 23 January 2023.

Application granted.

Appearances

Eoin Coffey for the plaintiff instructed by BHSM LLP

The first named defendant appeared as a litigant in person

JUDGMENT of Mr. Justice Garrett Simons delivered on 16 January 2023

INTRODUCTION

1 This matter comes before the High Court by way of an application for an extension of time within which to issue execution of an order for possession. The application is made pursuant to Order 42, rule 24 of the Rules of the Superior Courts.

PRINCIPLES GOVERNING APPLICATION FOR LEAVE TO EXECUTE

2 A party who has the benefit of an order or judgment is generally required to execute same within a period of six years. If this is not done, then it is necessary to make an application for leave to issue execution pursuant to Order 42, rule 24.

3 That rule provides as follows:

“24. In the following cases, viz.:

(a) where six years have elapsed since the judgment or order, or any change has taken place by death or otherwise in the parties entitled or liable to execution;

(b) where a party is entitled to execution upon a judgment of assets in futuro;

(c) where a party is entitled to execution against any of the shareholders of a company upon a judgment recorded against such company, or against a public officer or other person representing such company;

the party alleging himself to be entitled to execution may apply to the Court for leave to issue execution accordingly.

The Court may, if satisfied that the party so applying is entitled to issue execution, make an order to that effect, or may order that any issue or question necessary to determine the rights of the parties shall be tried in any of the ways in which any question in an action may be tried: and in either case the Court may impose such terms as to costs or otherwise as shall be just. Provided always that in case of default of payment of any sum of money at the time appointed for payment thereof by any judgment or order made in a matrimonial cause or matter, an order of fieri facias may be issued as of course upon an affidavit of service of the judgment or order and non-payment.”

4 The grant of leave to issue execution under Order 42, rule 24 is discretionary. The criteria governing the exercise of this discretion have been set out in Smyth v. Tunney [2004] IESC 24, [2004] 1 I.R. 512. There, the Supreme Court held that it is not necessary to give some unusual, exceptional or very special reasons for obtaining permission to execute following the lapse of six years from the date of the judgment or order, provided that there is some explanation at least for the lapse of time. The Supreme Court went on to state that, even if a good reason is given, the court must consider any counterbalancing allegations of prejudice.

5 The discretionary nature of the relief has been reaffirmed by the Court of Appeal in KBC Bank plc v. Beades [2021] IECA 41 (at paragraph 67):

“It is clear from the jurisprudence, particularly the decision of the Supreme Court in Smyth v. Tunney [2004] 1 I.R. 512, that O. 42, r. 24 is a discretionary order and reasons must be given for the lapse of time since the judgment or order during which execution did not occur. Even where a good reason is identified for the delay, the court can take into account counterbalancing arguments of prejudice. It is noteworthy that in Smyth v. Tunney, as in the instant case, orders sought to be executed had been made in the course of long running litigation, and leave to issue execution pursuant to O. 42, r. 24 had been made some twelve years or so later. It is also noteworthy that the reasons identified for lapse in time in Smyth v. Tunney included that the applicants had made a number of unsuccessful attempts to execute.”

6 The Court of Appeal provided further elaboration on the legal test as follows in Ulster Bank Ireland Ltd v. Quirke [2022] IECA 283 (at paragraphs 59 and 60):

“I do not think that it is open to doubt that the threshold set by Smyth v Tunney is a low one, but it is nonetheless a threshold that must be met. As Simons J. said in Hayde v H & T Contractors, at para.21, ‘The threshold is not particularly high: it is not necessary to give some unusual, exceptional or very special reasons for the delay. It is nevertheless a threshold which has to be satisfied: the threshold albeit minimal is not meaningless.’

As to whether or not any reason is required to explain the lapse of time for the period of six years from the date of the relevant judgment or order, I consider that this must be so. Once the period of six years from the date of the judgment or order has expired, an application is required for leave to issue execution, and the applicant, in order to succeed with an application, must explain the ‘lapse of time’ up to that point. If the application is made six years and one day after the judgment/order, the lapse of time in such a scenario can only refer to the period of time beginning on the date of the judgment or order and ending on the date of the application, because there has been no other lapse of time at that point, and yet an application is required. That being the case, the lapse of time during that period must always require explanation, regardless as to when the application is ultimately advanced. Following upon the expiration of six years from the date of judgment, every day before an application is made also forms part of the ‘lapse of time’ which in an overall sense must be explained.”

7 The Court of Appeal also expressed full agreement with earlier dicta from the High Court to the effect (i) that there is a public interest in ensuring that creditors are not deterred from engaging positively with judgment debtors...