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Everyday Finance Designated Activity Company trading as Link Financial & Anor v Easy Fundraising Ltd and Anor (Approved)
Factual and Procedural Background
The plaintiffs brought a special summons seeking possession of the property and injunctive relief removing the defendants, and a jurisdictional dispute arose because the first defendant said the property was his family home and principal private residence. [Para 15][Para 17]
The claim arose from a loan facility advanced by the predecessor lender in 2005 to the second defendant, together with a 2006 guarantee by the first defendant and a related charge over the property, which the plaintiffs said they now held by succession and receiver appointment. [Para 20]
The plaintiffs said the property was not the first defendant's principal private residence when the security was created, that the Code of Conduct on Mortgage Arrears did not apply, and that the last repayment was made in August 2022. [Para 20]
The receiver's affidavit said occupation inspections in October 2022, March 2023, and November 2023 found a tenant in residence, while the first defendant swore that he lived in the property and that it was his family home and principal private residence. [Para 21][Para 22]
Legal Issues Presented
- Whether section 3 of the Land and Conveyancing Law Reform Act 2013 required the possession proceedings to be brought in the Circuit Court because the property was the first defendant's principal private residence when the proceedings were issued. [Para 17][Para 39][Para 40]
- Whether the Central Bank Code of Conduct on Mortgage Arrears applied to a mortgage that was created before the property became the first defendant's principal private residence. [Para 17][Para 26][Para 68]
- Whether the first defendant's allegation that he signed the security documents under his father's undue influence defeated the plaintiffs' claim. [Para 25][Para 72][Para 76]
Arguments of the Parties
Plaintiffs' Arguments
- The plaintiffs said the property was not the first defendant's principal private residence when the security documents were executed and that there was no evidence he lived there before January 2024. [Para 20][Para 22]
- They argued that section 3 of the 2013 Act turned on the status of the land when proceedings were instituted, not on the status of the mortgage when it was created. [Para 39][Para 42][Para 43][Para 56]
- They submitted that the CCMA did not apply because the loan was secured before the property became the first defendant's primary residence. [Para 17][Para 68]
- They also maintained that the undue influence allegation was unsupported and could not defeat summary relief. [Para 76][Para 77]
First Defendant's Arguments
- The first defendant said the property was his family home and principal private residence, so the High Court lacked jurisdiction and the matter should have been brought in the Circuit Court. [Para 17][Para 22][Para 39]
- He also contended that the CCMA applied and that the plaintiffs had breached it. [Para 25][Para 26]
- He said he signed the 2006 security documents under his father's undue influence and relied on the absence of independent legal advice. [Para 25][Para 72]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Heather Hill v An Bord Pleanála [2024] 2 IR 222 | The "words in context" approach to statutory interpretation. [Para 42] | Both parties relied on it, but the court held that section 3 was not ambiguous enough to support the plaintiffs' proposed reading. [Para 42][Para 43] |
| National Irish Bank v Graham 1994 WJSC - SC 1515 | A spouse's statutory protection applies only where the property is a family home at the time of conveyance, not because it may become one later. [Para 46] | The court used it to reject the plaintiffs' analogy and to show that the relevant protection is tied to the property's status at the relevant time. [Para 46] |
| Fennell v Creedon [2015] IEHC 711 | CCMA-related treatment of mortgagors who later move into secured property. [Para 49] | The court said it concerned the CCMA only and did not assist with the interpretation of section 3. [Para 49] |
| Tyrrell v Wright [2018] IECA 295 | CCMA-related treatment of later residence in secured property. [Para 49] | The court said it also concerned the CCMA only and did not assist with section 3. [Para 49] |
| Charleton & Anor v. Coates [2021] IECA 58 | The Court of Appeal left open whether unilateral later residence could make property a principal private residence for section 3 purposes. [Para 52] | The court treated the issue as one it had to decide and held that the timing of proceedings, not the mortgage's execution, governed section 3. [Para 52][Para 54] |
| M'Mackin v Hibernian Bank [1905] 1 IR 296 | A historical presumption of undue influence where a child lives with or under parental control. [Para 72] | The court held that the old approach did not fit modern living arrangements and no presumption arose on the facts. [Para 72][Para 73][Para 76] |
| Bank of Ireland v Curran & Anor [2016] IECA 399 | A bare allegation of undue influence is insufficient to resist summary judgment. [Para 76] | The court relied on it to conclude that the first defendant's allegation was only a bald assertion and did not defeat the plaintiffs' claim. [Para 76][Para 77] |
Court's Reasoning and Analysis
The court rejected the plaintiffs' attempt to anchor section 3 to the character of the mortgage rather than the status of the land, holding that the statutory wording and Long Title point to land that is the mortgagor's principal private residence when proceedings are instituted. [Para 42][Para 43]
The court said the subsection fixes jurisdiction by reference to the land in the present tense, and that the fact the mortgage was created before 1 December 2009 only identifies the class of mortgages to which the section applies. [Para 43][Para 48]
Although the plaintiffs drew an analogy with family home protection, the court said the analogy did not help them because the relevant question was a literal reading of section 3, not a liberal extension of it. [Para 46]
The court treated Charleton & Anor v. Coates as showing the issue remained open, then held that the decisive point was whether the property was the first defendant's principal private residence when the proceedings were issued. [Para 52][Para 54]
Applying that test, the court accepted that the property had been the first defendant's principal private residence since January 2024, before the May 2024 proceedings began, and therefore the proceedings should have been brought in the Circuit Court. [Para 55][Para 56]
The court further held that later changes in occupation did not cure the jurisdictional defect, because jurisdiction depended on the position when proceedings were instituted. [Para 58][Para 60][Para 63][Para 65]
On the CCMA issue, the court held that the Code only applies where the property secured the loan was the borrower's primary residence at the time the mortgage was executed, which was not this case. [Para 68][Para 69]
On undue influence, the court said the first defendant's age, student status, and residence with his father did not create a presumption, and his allegation was too bare to defeat the claim. [Para 72][Para 73][Para 76]
The court added that, if jurisdiction had existed, the plaintiffs would have been entitled to possession because the loan and guarantee were in default and the receiver had been validly appointed. [Para 77][Para 78]
Holding and Implications
DISMISSED for want of jurisdiction. The court held that the proceedings had been wrongly brought in the High Court and should have been instituted in the Circuit Court because the property was the first defendant's principal private residence when the proceedings were issued. [Para 62][Para 65]
The immediate consequence was that the High Court could not determine the possession claim, although the court indicated that the plaintiffs would otherwise have been entitled to possession and that the first defendant's undue influence and CCMA arguments failed. [Para 69][Para 78]
The judge's indicative view was that the first defendant should receive his costs, and the court left open whether a mortgage contract could in a future case expressly oust the jurisdiction arising under section 3. [Para 81][Para 61]
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