Start Mortgages DAC v McInerney

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 28 March 2023
• Neutral Citation: [2023] IEHC 155
• Court: High Court
• Docket Number: 2009 No. 1463 SP

Between

Start Mortgages DAC

Plaintiff

and

William McInerney (Otherwise Bill McInerney)

Mary McInerney

Defendants

[2023] IEHC 155

2009 No. 1463 SP

THE HIGH COURT

Possession – Execution – Extension of time – Plaintiff seeking an extension of time within which to issue execution of an order for possession – Whether the plaintiff had established a good reason which explained the failure to execute the order for possession

Facts: The High Court (Dunne J) made an order on 28 March 2011 directing the defendants, Mr and Ms McInerney, to deliver up possession of the property comprised in Folio 6287F, County Clare (the order for possession). The plaintiff, Start Mortgages DAC, applied to the High Court for an extension of time within which to issue execution of the order for possession, pursuant to Order 42, rule 24 of the Rules of the Superior Courts. The two principal reasons advanced to explain the lapse of time since 10 February 2020 were as follows. First, it was said that the plaintiff had sought to engage with the defendants with a view to avoiding the forced sale of the mortgaged property. Reference was made to the plaintiff having written to the defendants in February and March 2021. Reference was also made to the fact that the defendants continued to make regular repayments (albeit that those were not sufficient to cover the monthly instalments due). Secondly, the plaintiff pointed to the agreed moratorium on repossessions and to the fact that throughout the majority of 2020 and 2021, County Sheriffs were not executing orders of possession due to the coronavirus pandemic. The first defendant made the following two points in opposition to the motion. First, it was alleged that the order for possession of 28 March 2011 was invalid by reference to the statutory lacuna which had existed prior to the enactment of the Land and Conveyancing Law Reform Act 2013. The lacuna related to the repeal of the statutory power to seek an order for possession pursuant to s. 62(7) of the Registration of Title Act 1964. Secondly, it was submitted that the first defendant had been making regular payments pursuant to the loan facility in the last number of years.

Held by Simons J that he was satisfied that the explanation for the failure to execute the order for possession met the threshold of a reasonable explanation; in particular, it was reasonable for the judgment creditor to show forbearance while repayments, albeit modest, were being made. Simons J noted that no countervailing prejudice to the other side which might justify the refusal of leave to execute had been asserted. Therefore, he held that the legal test for granting leave to issue execution, as per Smyth v Tunney [2004] IESC 24, had been met. He held that it was not open to the first defendant to seek to challenge the validity of the order for possession more than a decade after it had been made. Simons J held that the first defendant had a right of appeal to the Supreme Court against the order for possession granted on 28 March 2011. Simons J held that the first defendant did not exercise his constitutional right of appeal at the time and could not seek to make a collateral attack against the validity of that order in response to a procedural motion brought by the plaintiff. Simons J held that there is a public interest in the finality of litigation and a party, such as the plaintiff in the proceedings, is entitled to rely on a final unappealed order of the High Court, citing Start Mortgages DAC v Kavanagh [2023] IEHC 37. He held that it was apparent from the statement of accounts which had been exhibited that such payments as had been made by the first defendant had not reduced the overall arrears: those continued to grow and stood at a sum of €164,899.12. Simons J held that there was nothing to suggest that the defendants would be in a position to clear those arrears in a reasonable period of time.

Simons J proposed granting the plaintiff leave to issue execution, pursuant to Order 42, rule 24 of the Rules of the Superior Courts, in respect of the order for possession of 28 March 2011. He held that a stay of two months would be imposed on the proposed order so as to allow the first defendant a further opportunity to progress the intended application for a personal insolvency arrangement.

Leave to execute granted.

Appearances

Rudi Neuman 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 28 March 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...