Start Mortgages DAC v Gawley and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 17 April 2023
• Neutral Citation: [2023] IEHC 176
• Docket Number: 2009 No. 1283 SP
• Court: High Court

Between

Start Mortgages DAC

Plaintiff

and

Peter Gawley

Sandra Gawley

Defendants

[2023] IEHC 176

2009 No. 1283 SP

THE HIGH COURT

Order for 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 met the threshold of establishing a good reason which explained the failure to execute the order for possession

Facts: The High Court (Dunne J) made an order on 7 March 2011 directing the defendants, Mr and Ms Gawley, to deliver up possession of the property comprised in Folio 141614F County Dublin. The order for possession remained unexecuted. The plaintiff, Start Mortgages DAC, had, since 15 January 2015, been registered as the owner of the charge pursuant to which the order for possession had been made. The plaintiff issued a motion on 7 August 2019 seeking leave to issue execution. The motion came on for hearing on 11 November 2019. Leave to issue execution was granted for the reasons explained in a reserved judgment delivered on 9 December 2019: [2019] IEHC 830. The first defendant exercised his right of appeal against that judgment and order. The appeal was dismissed by the Court of Appeal for the reasons explained in a reserved judgment delivered on 30 November 2020: [2020] IECA 335. An application for leave to issue execution was brought before the High Court by way of notice of motion issued on 27 October 2022. The motion came on for hearing on 20 March 2023 and judgment was reserved. The motion was grounded on the affidavit of Ms McCarthy filed on 27 October 2022. The two principal grounds relied upon in explanation for the delay in execution since the resolution of the first defendant’s appeal in November 2020 were as follows. First, it was said that the plaintiff had made efforts to contact the defendants with a view to avoiding a forced sale of the mortgaged property as follows: on 10 December 2020, a letter issued to the defendants asking them to contact the plaintiff regarding their account; on 22 March 2021, the plaintiff attempted to contact the first defendant by telephone but there was no answer; On 26 April 2021, the plaintiff sent correspondence to the defendants inviting them to engage in the personal insolvency process and enclosing an information booklet regarding same; on 25 June 2021, the plaintiff spoke briefly with the first defendant by telephone and the first defendant was reported to have stated that he did not have a mortgage with the plaintiff and the call was ended. It was then averred that, on a monthly basis thereafter between 27 July 2021 and 13 April 2022, the plaintiff again issued letters to the defendants asking them to make contact regarding their mortgage. The second explanation offered for the delay related to the impact of the Covid-19 pandemic. Reference was made on affidavit to the Banking and Payments Federation Ireland’s moratorium on repossessions which expired in September 2020 and to the fact that “Level 5” restrictions remained in place until April 2021. It was further averred that County Sheriffs were not executing orders of possession due to the impact of the pandemic. The affidavit concluded by stating that, as of 30 September 2022, the balance outstanding on the defendants’ loan account was in the sum of €485,833.23, with an arrears balance of €226,748.63. Those figures were updated in a second affidavit sworn by Ms McCarthy on 5 December 2022. The last payment made by the defendants was on 30 June 2014 in the sum of €600.

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 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 [2004] IESC 24, had therefore been met.

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 7 March 2011. His provisional view was that the plaintiff, having been entirely successful in what was a contested application was entitled to recover the costs of the motion as against the first defendant.

Application 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 17 April 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:

“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...