Thursday, March 16, 2023

A woman has won her Supreme Court appeal against a lower court’s decision not to strike out repossession proceedings brought against her by mortgage company Start Mortgages DAC.

The appeal was brought by Noreen Stafford with an address at Rathanna, Pearse Road, in Sligo.

In 2019, Ms Stafford was the subject of Circuit Court proceedings brought by Start seeking a repossession order in respect of her family home.

She claimed that there were issues regarding the mortgage documentation relied on by Start, and alleged it had wrongfully used a power of attorney to re-execute a mortgage over a new piece of land she owned and had signed it themselves on her behalf.

It was claimed that she had originally put up a parcel of land as security for a loan she obtained. However, she claimed that Start had moved the security from that asset to her family home.

Start had denied any wrongdoing, and argued that it was entitled to possession order.

Start’s application for a repossession order against her was adjourned after the Circuit Court judge became dissatisfied with evidence adduced by the respondent and directed that a further sworn statement be filed regarding the circumstances in which the mortgage documentation had been executed.

No further affidavit was ever filed by the respondent in the Circuit Court action, despite further adjournments being granted.

In 2020 she brought a motion to have the repossession order struck out, which was subsequently granted by the Circuit Court.

Start appealed that decision to the High Court, which allowed the appeal and remitted the matter back to the Circuit Court for reconsideration.

Supreme Court appeal

She appealed the High Court’s decision to the Supreme Court on the basis that her case had been heard by Circuit Court and struck out, and on that basis the High Court did not have the power to remit the matter.

Late last year, a three-judge panel comprised of Mr Justice John MacMenamin, Ms Justice Iseult O’Malley and Mr Justice Gerard Hogan of the Supreme Court agreed to consider her appeal against the High Court’s decision on the basis that it raised a matter of general public importance.

The Supreme Court noted that it appeared from the transcript that the High Court was in effect told that Start’s appeal was against a refusal of an adjournment by the Circuit Court.

It did not appear that the High Court was told that the Circuit Court judge had embarked on a substantive hearing and not been satisfied with the proofs, or that the respondent had not progressed the matter at all since May 2019, the Supreme Court held.

The Supreme Court had made it clear in another case that s.39 of the Courts of Justice Act 1936 does not confer a jurisdiction to remit where there has been a conclusive finding on the merits.

However, it was not clear whether Ms Stafford’s case fell into that category, the Supreme Court added.

Her appeal appeared to raise a question as to the legal status of a Circuit Court order made in such circumstances, which is a matter of general public importance which the Supreme Court said it should consider.

Ms Stafford, who had originally acted for herself in the case, was represented before the Supreme Court by Conor Power SC, with Keith Farry Bl, and instructed by solicitor Nicola Nevin in the proceedings.

However, before the matter went to a full hearing before the Supreme Ms Justice O’Malley was informed that Start had conceded the appeal.

Ms Stafford was also awarded her costs in the appeal.


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