Start Mortgages DAC v Rogers & Anor (Approved)

Factual and Procedural Background

The Plaintiff, a mortgage lender, initiated proceedings against the Defendants, who jointly entered into a mortgage agreement in 2006 secured on a property which was their family home. The Defendants experienced financial difficulties shortly after the loan was drawn down, resulting in arrears and sporadic payments. The Plaintiff obtained an order for possession in 2008 after initiating special summons proceedings. Despite intermittent payments over the years, significant arrears accumulated, and by 2012 payments ceased almost entirely.

In 2015 and again in 2018, the Plaintiff sought leave from the High Court to issue execution of the possession order. The 2018 application resulted in an order granting leave to issue execution, which led to an order of possession issued in July 2019. Execution of possession occurred on 10th March 2020, with the Plaintiff taking possession as mortgagee-in-possession. The Defendants were evicted but allegedly re-entered the property, occupying it as trespassers according to the Plaintiff.

The Defendants, particularly the second Defendant, opposed the Plaintiff's interlocutory application seeking relief to require them to vacate the property. The second Defendant raised multiple arguments challenging the validity of the eviction, service of proceedings, and the Plaintiff’s communication regarding the mortgage arrears. The proceedings also addressed the personal circumstances of the Defendants, including health issues and the breakdown of their marriage.

Legal Issues Presented

1. Whether the eviction carried out on 10th March 2020 was valid, specifically if the execution order relied upon by the Plaintiff had lapsed.
2. Whether the Plaintiff’s application to recover possession was statute barred due to the passage of time since the original possession order.
3. Whether the Plaintiff failed to communicate properly with the second Defendant, affecting equitable relief.
4. Whether the Plaintiff, through its agents, acquiesced or consented to the Defendants’ re-entry and occupation of the property after eviction.
5. The applicable threshold test for the grant of an interlocutory injunction in this context (prohibitory vs. mandatory injunction).
6. The balance of convenience and adequacy of damages as remedies pending trial.

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff contends that the order of 12th November 2018 granted leave to issue execution but was not itself an execution order and therefore did not expire after one year.
• The Plaintiff asserts that the subsequent order of possession dated 19th July 2019 is the valid execution order, executed within one year, and authorizes possession.
• The Plaintiff claims proper service of all proceedings and correspondence on the Defendants, including personal service and registered post.
• The Plaintiff argues the Defendants’ occupation following eviction constitutes trespass and that the interlocutory injunction sought is prohibitory, requiring the Defendants to refrain from illegal occupation.
• The Plaintiff maintains that damages would not be an adequate remedy given the Defendants’ significant arrears and lack of undertaking as to damages.

Second Defendant's Arguments

• The eviction was invalid because the execution order (the 2018 leave to issue execution order) had lapsed after one year and was not renewed.
• The Plaintiff’s application to recover possession is statute barred as it was issued more than twelve years after the original possession order.
• The Plaintiff failed to communicate properly with the second Defendant both formally (service of documents) and informally (regarding the mortgage arrears and risk to the family home), resulting in the Plaintiff lacking "clean hands".
• The Plaintiff acquiesced or consented to the Defendants’ re-entry and continued occupation after eviction through conduct of its agents.
• The interlocutory injunction sought is mandatory, requiring the Defendants to vacate, and thus the Plaintiff must meet a higher threshold of proof.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed the central legal issue of whether the eviction was valid, focusing on the nature and lifespan of the execution order relied upon by the Plaintiff. It distinguished between the "order for possession" granted in 2008, the "leave to issue execution" order granted in 2018, and the "order of possession" issued in 2019. The court found that the 2018 order granted leave to issue execution but was not itself an execution order capable of direct enforcement or possession.

The court held that the 2019 order of possession was the valid execution order with a one-year lifespan, executed within that period, thereby authorizing the eviction on 10th March 2020. The argument that the 2018 order had lapsed and invalidated the eviction was rejected, as was the contention that the Plaintiff’s application was statute barred since the current proceedings were for trespass commencing after execution.

Regarding the nature of the interlocutory injunction, the court accepted the Plaintiff’s characterization of the injunction as prohibitory, aimed at restraining ongoing trespass, which requires a lower threshold ("serious question to be tried"). The court noted that even if the higher "strong case" threshold applied, the Plaintiff met it given the weakness of the Defendants’ legal and factual arguments.

The court examined the Defendants’ claims of inadequate communication and lack of knowledge, finding that the Plaintiff had taken all reasonable steps to serve documents and correspond with the Defendants. The second Defendant’s assertions of ignorance were deemed implausible and indicative of a wilful disregard for the proceedings.

The contention that the Plaintiff acquiesced to the Defendants’ re-entry was critically analyzed. The court found the Defendants’ account to be largely hearsay and inherently improbable, particularly the claim that a lock was found discarded with the key shortly after eviction. The court concluded that no reasonable understanding could have arisen that the Defendants could remain in possession.

In weighing the balance of convenience, the court determined that damages would not be an adequate remedy for the Plaintiff and that maintaining the Defendants’ unlawful occupation would invert the status quo, which the law does not support. The court acknowledged the human difficulties faced by the Defendants but found no sufficient basis to delay enforcement of the Plaintiff's legal rights.

Holding and Implications

The court granted the Plaintiff’s interlocutory injunction requiring the Defendants to vacate the property.

HOLDING: The Plaintiff’s application for interlocutory relief was GRANTED.

Implications: The decision confirms that an order granting leave to issue execution is distinct from an execution order and does not expire in a manner that invalidates subsequent execution orders properly issued and executed within their lifespan. The Defendants’ occupation following eviction was unlawful trespass, entitling the Plaintiff to prohibitory interlocutory relief. No new precedent was set beyond the application of established principles to the facts. The ruling directly affects the parties by enforcing the Plaintiff’s rights as mortgagee-in-possession and requiring the Defendants to vacate the property pending final determination.