Start Mortgages Designated Activity Company v Anthony Galibert

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 01 April 2022
• Neutral Citation: [2022] IEHC 190
• Court: High Court
• Docket Number: [Record No. 2019/345CA]

Between:

Start Mortgages Designated Activity Company

Appellant

and

Anthony Galibert

and

Paula Galibert

Respondents

[2022] IEHC 190

[Record No. 2019/345CA]

THE HIGH COURT

Order for possession – Entitlement – Credible defence – Appellant seeking order for possession – Whether the appellant had established its entitlement to possession of the premises

Facts: The appellant, Start Mortgages DAC, appealed to the High Court against the order of the Circuit Court (Judge Doyle) made on the 16th of July, 2019. By that order the Circuit judge ordered that the appellant’s claim for an order for possession proceed to a plenary hearing. She further directed that the appellant’s solicitor provide the first respondent, Mr Galibert, with a contact name and phone number so that he could make an appointment at a time that suited him to view documents in his solicitor’s office. Phelan J’s first task was to decide whether the appellant established that it was the owner of the charge and that the right to seek possession had arisen and was exercisable on the facts. If she was satisfied as to the appellant’s proofs in that regard, she would proceed on the basis that a prima facie case had been shown and she must then decide whether the respondents had identified a credible or arguable defence. Unless she was satisfied that no real or credibly arguable defence had been shown, she would not order summary judgment.

Held by Phelan J that the appellant had established its entitlement to possession of the premises and the respondents had not made out any credible grounds of defence. Insofar as defence issues had been raised, she considered they were bound to fail with the result that transferring to plenary hearing was merely postponing the inevitable during which time the respondents’ level of indebtedness continued to grow. Therefore, she was satisfied that the appeal should be allowed and it was proper to make the order for possession sought. While she had arrived at a different decision to that of the Circuit Court judge who refused summary judgment and transferred the case to plenary hearing, the law had become clearer since the matter was before the Circuit Court in view of a series of recent decisions.

Phelan J proposed granting an order for possession pursuant to s. 62(7) of the Registration of Title Act 1964 and s. 1(2) of the Land and Conveyancing Law Reform Act 2013. She proposed a stay of six months on the order to allow the respondents time to arrange alternative accommodation, subject to such submissions as may be made.

Appeal allowed.

JUDGMENT of Ms. Justice Siobhán Phelan delivered on the 1 ^st day of April, 2022 .

INTRODUCTION

1 . This is the appellant's appeal against the order of the Circuit Court (Her Honour Judge Doyle) made on the 16 ^th of July, 2019. By this order the learned Circuit judge ordered that the appellant's claim for an order for possession proceed to a plenary hearing. She further directed that the appellant's solicitor provide the first named respondent with a contact name and phone number so that he could make an appointment at a time that suited him to view documents in his solicitor's office.

2 . The respondents were litigants in person before the Circuit Court and again before the High Court. The second named respondent has not actively participated in the defence of the proceedings which have been dealt with by the first respondent, but she has been served at all stages of the proceedings and affidavits of service were included with the papers before the Court. I was advised by the first respondent that the second respondent found the situation very difficult and stressful. It appears for this reason she has elected to leave the conduct of the proceedings to her husband. The first respondent, on the other hand, has actively participated in opposing the appellant's proceedings. The record of the proceedings demonstrates that the first respondent has appeared without fail in court as required by court listings. In July 2019 he succeeded in persuading the Circuit Court judge not to make a summary order in these proceedings.

BACKGROUND

3 . The respondents are a married couple with children. They are the registered owners of a property at 96 Abbeygate, Abbey Road, Ferrybank in the County of Waterford and this property is their family home (hereinafter “the property”).

4 . It appears that the respondents were introduced to the appellants (formerly known as Start Mortgages Limited) by a mortgage broker in connection with the purchase of their family home.

5 . By letter of offer dated the 6 ^th of March 2008 the applicant agreed to advance by way of loan to the respondents the sum of €211,650.00 by way of a term loan subject to the terms and conditions set out in and attached to the letter of offer (“the loan agreement”) and the appellant's standard conditions. A form of acceptance in respect of the loan agreement was signed by the respondents on the 20 ^th of March 2008.

6 . It was a condition of the loan agreement that loan facilities advanced by the appellant would be secured as a first legal charge over the property. Pursuant to the loan agreement, Start Mortgages Limited duly advanced the sum of €211,650,00 to the respondents on the 28 ^th of March 2008. Further, pursuant to the loan agreement, the defendants mortgaged/charged the property to the applicants by Deed of Mortgage and Charge (hereinafter “the Mortgage”) dated the 16 ^th of April 2008 made between the respondents of the one part and Start Mortgages Limited of the other part. The mortgage was registered in the land registry over folio 34045F on the 29 ^th of April 2008.

7 . The respondents fell into arrears on the account before the end of 2008. Despite some payments, arrears continued to grow and in 2015, the respondents stopped making any payments whatsoever.

8 . On the 14 ^th of April, 2015 the solicitors acting for the appellants wrote to the respondents separately and individually formally demanding repayment in the sum of €298,328.91 being the mortgage balance payment to be then claimed to be outstanding to the appellant on foot of the facilities granted including arrears repayments. This letter further informed the respondents of the appellant's intention to institute proceedings.

9 . A month later, on the 14 ^th of May 2015, the solicitors acting for the appellants wrote to the respondents, again separately and individually, requesting them to deliver possession of the lands.

10 . A Civil Bill for Possession (Record No. 300/15) issued out of the Circuit Court on the 26 ^th of November 2015.

THE CIRCUIT COURT PROCEEDINGS

11 . As summarized above, these proceedings were commenced by the appellant (then known as Start Mortgages Limited) issuing a civil bill for possession dated the 26 ^th of November 2015.

12 . A series of affidavits or other documents were exchanged between the parties during the course of the proceedings.

13 . In her first affidavit sworn on behalf of the appellant on the 18 ^th of November 2015, Ms. Coen averred to the factual matters grounding the proceedings in her capacity as company secretary and officer of the appellant. She set out the basic facts regarding the loan facility and the mortgage and exhibited the relevant documents to evidence same. She also exhibited a copy of Folio 34045F for the County of Kilkenny showing the appellant as the registered owners of a charge for present and future advances. She also averred as to the respondents having defaulted in repayment and exhibited a statement of arrears showing a total balance of €309,856.09 due and owing, inclusive of arrears as of the 31 ^st of October 2015. Ms. Coen exhibited a copy of the loan agreement and the mortgage deed together with copy formal letters of demand for payment first and then for vacant possession.

14 . The first named respondent delivered an unsworn statement entitled “ replying affidavit” which is undated but appears to have been received in the Circuit Court office on the 25 ^th of January, 2016. This document was more in the form of a request for production of documents or voluntary discovery than an affidavit and did not deny the basic facts regarding the loan and the mortgage. In this document reliance was placed by the respondents on s. 84 of the Land and Conveyancing Law Reform Act 2009 which provides for production and safe custody documents.

15 . By letter dated the 13 ^th of April 2016 the solicitors for the appellant replied to advise that s. 84 of the 2009 Act does not apply to the within proceedings as the mortgage was executed prior to November 2009. In this letter the respondents were referred to the exhibits to the affidavit of Ms. Coen sworn in November 2015 and advised that the remainder of the documents listed in the replying affidavit did not in fact exist or were not mentioned in the pleadings. The letter further indicated that identified original documents would be available to inspect at the offices of the appellant on either of two dates notified in the letter. The letter pointed out that inspection facilities had previously been offered but not availed of all.

16 . In a further sworn document entitled “supplementary affidavit” filed on the 4 ^th of May, 2016, the appellant relied, inter alia, on material received pursuant to a data access request to complain that Ms. Coen's affidavit had been drafted by a third party in consultation with her and he contended that it was not therefore her affidavit. He took issue with her statement that the price of the property would be enhanced if the property could be sold with vacant possession pointing out that the property is on a “ ghost estate” where many houses are boarded up and some have never been lived in. He further took issue with the reference to the property as a “ principal primary residence” stating that it was his family home, not a “ principal primary residence”.

17 . In a...