Wellstead v Judge White & Fetherstonhaugh

JurisdictionIreland
JudgeMr Justice Michael Peart
Judgment Date25 November 2011
Neutral Citation[2011] IEHC 438
CourtHigh Court
Date25 November 2011
Wellstead v Judge White & Fetherstonhaugh

Between:

Leo Wellstead
Applicant

And

Judge White and Paul Fetherstonhaugh
Respondents

[2011] IEHC 438

Record Number: No. 652 JR./2011

THE HIGH COURT

Abstract:

Property law - Judicial review - Possession - Delay - Family home - Stay - Arguable ground - Discretion to refuse judicial review

Facts: An order for possession of a property had been obtained by Ulster Bank due to non-payment of a mortgage against the premises of which the applicant was the joint owner and who represented himself in the proceedings. The applicant sought reliefs by way of judicial review two years and nine months after the possession order was made, including a stay on eviction form the family home and judicial review on all aspects of the repossession proceedings. A stay had been initially granted for six months. A further stay was granted for three months. The applicant had appealed to the High Court and the appeal dismissed.

Held by Peart J. that there was no reason adduced by evidence to explain or justify the delay in challenging the validity of the order for possession. No arguable ground was advanced for judicial review.

Reporter: E.F.

Judgment of
1

Mr Justice Michael Peart delivered on the 25th day of November 2011:

2

The applicant who represents himself on this application seeks leave to seek reliefs by way of Judicial Review. I directed that the application be brought on notice to the Ulster Bank which has obtained an order for possession due to non-payment on foot of its mortgage, and to his former partner, Ms. Langmaid, who is a joint owner of the premises and who consented to the order for possession being made. She no longer resides in the premises. Only the applicant and his son are currently residing there.

3

The relief sought by him in his Statement of Grounds is described in the following terms:

"An immediate stay on eviction from my family home and a full judicial review on all aspects of repossession proceedings of all orders of the Registrar's Court and Circuit Court, Portlaoise, Co. Offaly".

4

The premises in question are jointly owned by the applicant and Ms. Langmaid, and were mortgaged by them to Ulster Bank under a Deed of Charge dated 14 th March 2003.

5

Following default in repayments, the bank instituted ejectment proceedings, and ultimately an order was made by the County Registrar, the second named respondent on the 23 rd February 2009, but imposed a stay on repossession for a period of six months.

6

By that time the applicant and Ms. Langmaid were living apart but the applicant remained in the premises.

7

At the end of that six month period the applicant sought a further stay but was refused by the County Registrar. Ultimately on appeal, a further stay was granted for three months, but with the consent of all parties arrangements for the sale of the property were set out by the Court, such as the appointment of an auctioneer.

8

The matter came back before the High Court on a number of dates in 2010, including on foot of an application by Ulster Bank to have the stay on repossession lifted, and for an order restraining the applicant from interfering with the sale of the premises. These orders were granted.

9

On the 27 th July 2010 the stay was reinstated pending the determination of the applicant's appeal to the High Court against the County Registrar's order for possession.

10

His appeal was dismissed by me having heard that appeal on the 23 rd February 2011, and the order of the County Registrar was affirmed.

11

In August 2011 a further stay was granted during the long vacation to 5 th September 2011.

12

On the 8 th September 2011 that stay was extended to the 14 th September 2011 provided that the applicant files an application seeking leave for judicial review returnable for the 14 th September 2011.

13

On the 14 th September 2011 the stay was further extended to the 10 th October 2011 on which date the application for such leave was moved by the applicant. However, I directed that the application be brought on...

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25 cases
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    ...with the considerable number of decisions endorsing the views expressed by Peart J. in Wellstead v Judge White & Featherstonehaugh [2011] IEHC 438) that such clauses are neither unusual, mysterious nor unlawful. No case has been cited where the operation of such a term was found to adverse......
  • Permanent TSB Plc formerly Irish Life and Permanent Plc v Davis
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    ...and Charge and was in breach of contract. This issue was considered in a number of cases including Wellstead v Judge White & Ors [2011] IEHC 438, Kearney v KBC Bank Ireland Plc. and Reynolds [2014] IEHC 260, Harrold v Nua Mortgages Limited [2015] IEHC 15, and Danske Bank v Scanlon [2016......
  • Permanent TSB Plc formerly Irish Life & Permanent Plc
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    ...not involve the transfer of legal ownership. Counsel has referred me to the decision of Peart J. in Wellstead v. Judge Michael White [2011] IEHC 438 and the judgment of McGovern J. in Freeman v. Bank of Scotland plc [2014] IEHC 284 where, in each case, it was held that a securitisation sc......
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    ...when the bank repurchased the SPV's interest in the securitized loans and relevant securities. 12. In Wellstead v. Judge Michael White [2011] IEHC 438, Peart J. rejected an argument that a lending bank was not entitled to the benefit of an order for possession that had been made in favour o......
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