Start Mortgages DAC v Kavanagh

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 30 January 2023
• Neutral Citation: [2023] IEHC 37
• Court: High Court
• Docket Number: 2013 No. 353 SP

Between

Start Mortgages DAC

Plaintiff

and

Simon Kavanagh

Deirdre Kavanagh

Defendants

[2023] IEHC 37

2013 No. 353 SP

THE HIGH COURT

Order for possession – Securitisation – Strike out – First defendant seeking to set aside an order for possession pursuant to a mortgage – Whether the plaintiff was precluded from enforcing the mortgage

Facts: The plaintiff, Start Mortgages DAC, instituted proceedings by way of special summons on 19 June 2013. The primary relief sought had been an order for possession pursuant to a mortgage. The principal defence advanced related to the securitisation of the mortgage and underlying loan agreement. More specifically, it was argued that in circumstances where the beneficial interest in the mortgage and loan agreement had been assigned to a different legal entity, the plaintiff was not entitled to enforce the mortgage by way of legal proceedings. The proceedings came on for hearing before the High Court (Hedigan J) on 18 July 2016. The trial judge, in an ex tempore judgment, rejected the contention that the plaintiff was precluded from enforcing the mortgage because of the securitisation issue. The order for possession was perfected by the registrar on 21 July 2016. The first defendant, Mr Kavanagh (the moving party), applied to set aside the judgment and order by notice of motion issued on 10 November 2022. The principal argument advanced by the moving party related to the securitisation issue. The second argument advanced was to the effect that the special summons issued in the proceedings was “irregular”. The moving party argued that the special endorsement of claim was “but a mere heading”. It was alleged, variously, that there was no claim, that there were no details of a claim, that there was no cause of action, that there was no description or identification of the parties and that there was no description or identification of the liquidated sum. The third argument advanced was that the moving party was subject to an “ambush” in relation to the hearing on 18 July 2016. The argument appeared to be that the moving party had a legitimate expectation that the only matter which was to have been dealt with by the court on that date was an application for leave to cross-examine.

Held by Simons J that, having failed to appeal the judgment and order of 18 July 2016 to the Court of Appeal, the moving party could not seek to challenge the merits of same by inviting the High Court to overturn the judgment and order itself. Simons J held that prior to the hearing on 18 July 2016, the moving party had been fully apprised of all relevant particulars. Simons J held that the special summons correctly identified the cause of action, the date of the mortgage, and the mortgaged land; thereafter, there had been an extensive exchange of affidavits, and the loan agreement, the mortgage deed and statements of account had all been exhibited. Simons J held that the moving party was on notice of the precise basis upon which an order for possession was being sought. Simons J held that the shortcomings, if any, in the endorsement of claim did not result in any prejudice to the moving party, still less did this result in a clear and significant breach going to the very root of the fair and constitutional administration of justice, such that the judgment and order sought to be reopened could properly be considered to be a nullity. Simons J held that the substantive proceedings were listed for hearing before Hedigan J on 18 July 2016. Simons J held that this was not a case where a motion seeking leave to cross-examine had been issued and had been listed separately for hearing, with the substantive proceedings listed for mention only on that date. Simons J held that the application for an order for possession was properly before the court for hearing. Simons J held that there was no “ambush”.

Simons J dismissed the application to set aside the final, unappealed judgment and order of 18 July 2016; accordingly, the reliefs sought in the notice of motion of 10 November 2022 were refused. Simons J’s provisional view was that the plaintiff, having been entirely successful in resisting the application, was entitled to the costs of the motion as against the moving party.

Application refused.

Appearances

Rudi Neuman Shanahan for the plaintiff instructed by Lavelle Partners LLP

The first named defendant appeared in person

JUDGMENT of Mr. Justice Garrett Simons delivered on 30 January 2023

INTRODUCTION

1 This judgment is delivered in respect of an application to set aside a final, unappealed judgment and order of the High Court. The order sought to be impugned is an order for possession and had been made in the context of the present proceedings. The order is dated 18 July 2016 and had been made by a different judge than me. Put otherwise, one judge of the High Court is being asked to set aside a final, unappealed order made by another judge of the High Court.

2 The application to set aside the judgment and order has been brought by the first named defendant herein, Mr. Simon Kavanagh (“ the moving party”), by notice of motion. The motion issued on 10 November 2022 and came on for hearing before me on 16 January 2023.

3 The only jurisdictional basis for the application which is identified in the notice of motion is that under Order 124 of the Rules of the Superior Courts. The moving party has not sought to invoke the inherent jurisdiction of the court as described by the Supreme Court in In the matter of Greendale Developments Ltd (No. 3) [2000] 2 I.R. 514 and subsequent case law.

4 As the moving party is a litigant in person, I propose to consider de bene esse whether this inherent jurisdiction might be applicable, notwithstanding that same has not been identified in the notice of motion nor in oral submission. In doing so, I am showing considerable latitude to the moving party. Ordinarily, a party who wishes to invoke the exceptional jurisdiction to set aside a final, unappealed judgment and order is required to identify expressly the basis upon which that application is made.

PROCEDURAL HISTORY

5 The within proceedings were instituted by way of special summons on 19 June 2013. The primary relief sought in the special summons had been an order for possession pursuant to a mortgage.

6 It is apparent from the affidavits filed in these proceedings on behalf of the first named defendant, over the course of the period 2014 to 2016, that the principal defence advanced to the claim for an order for possession related to the securitisation of the mortgage and underlying loan agreement. More specifically, the first named defendant had contended that, in circumstances where the beneficial interest in the mortgage and loan agreement had been assigned to a different legal entity, Start Mortgages Ltd were not entitled to enforce the mortgage by way of legal proceedings.

7 In response, Start Mortgages Ltd had contended that whereas the beneficial ownership had been transferred, it remained the legal owner of the mortgage and, as such, was entitled to enforce same.

8 The fact that the mortgage and loan agreement had been transferred had been notified to the defendants as early as 22 January 2013, that is, more than five months prior to the institution of these proceedings.

9 The first named defendant had indicated an intention, in 2016, to seek leave to cross-examine the following deponents who had sworn affidavits on behalf of the plaintiff: Gill Cotter, Tara Smith, Stuart Parkinson and Eva McCarthy.

10 The proceedings ultimately came on for hearing before the High Court (Hedigan J.) on 18 July 2016. The trial judge refused the application for leave to cross-examine. As to the merits of the proceedings, the trial judge, in an ex tempore judgment, rejected the contention that Start Mortgages Ltd was precluded from enforcing the mortgage because of the securitisation issue. In this regard, the trial judge cited with approval the judgment in Kearney v. KBC Bank Ireland plc [2014] IEHC 260.

11 Hedigan J. imposed a nine month stay on the execution of the order for possession. The order for possession was perfected, i.e. drawn up by the registrar, a number of days later on 21 July 2016. The defendants never lodged an appeal against the judgment and order.

12 Start Mortgages Ltd subsequently converted to a designated activity company on 21 October 2016. On 26 February 2018, an ex parte application was made on behalf of the company seeking, in effect, to amend the title of the proceedings to reflect the change in status to a designated activity company.

13 It should be noted that this application took the form of an “ omnibus” application, whereby Start Mortgages Ltd relied on an affidavit and ex parte docket filed in one set of proceedings ( Start Mortgages Ltd v. Ryan High Court 2008 No. 26 SP) to ground an application to amend a total of twelve sets of High Court proceedings. The present proceedings were identified in an exhibit to the grounding affidavit which had been filed in the Ryan proceedings.

14 The ex parte application was moved before the High Court (Meenan J.) on 26 February 2018 and an order made amending the title of the proceedings. The order was perfected on 31 March 2018. There had been a clerical error in the original version of the order in that it mistakenly described the second named defendant as Deirdre Murphy rather than Deirdre Kavanagh. This clerical error was subsequently corrected on 9 April 2018.

15 Thereafter, an order for substituted service was made ex parte on 8 October 2018.

16 The first named defendant issued a notice of motion dated 13 November 2018, seeking to discharge the order amending the title of the proceedings. That motion came on for hearing before me on 25 February 2019. I delivered a reserved judgment on the matter on 11 April 2019 refusing the relief sought: Start Mortgages DAC v. Kavanagh ...