Irish Life & Permament Plc -v- Duff & Anor [2013] IEHC 43 (31 January 2013)

Irish Life & Permament Plc -v- Duff & Anor [2013] IEHC 43 (31 January 2013)

The court lacked jurisdiction to grant possession of the registered land as the right to possession under s. 62(7) of the 1964 Act had not accrued before its repeal. For unregistered land, while jurisdiction existed, the bank's failure to comply with the Code of Conduct on Mortgage Arrears (specifically, not making...

Source-derived case information.

Citation
[2013] IEHC 43
Parties
Plaintiff: Irish Life and Permanent plc; Defendant: Malcom Duff; Defendant: Susan Duff
Jurisdiction
Ireland
Judgment Date
31 January 2013
Procedural Posture
Circuit Appeal / Judgment on Appeal
Outcome
appeal allowed
Legal Topics
Mortgage Possession, Registered and Unregistered Land, Statutory Interpretation, Code of Conduct Compliance, Constitutional Rights (article 40.5)
Property Law Banking Law Constitutional Law Mortgage Possession Registered and Unregistered Land Statutory Interpretation Code of Conduct Compliance Constitutional Rights (article 40.5)

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Parties

Irish Life and Permanent plc

Plaintiff

Malcom Duff

Defendant

Susan Duff

Defendant

Procedural Posture

Circuit Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether the proceedings were properly commenced by Ejectment Civil Bill
  2. 2 Whether the court has jurisdiction to grant possession for registered and unregistered land post-2009 Act
  3. 3 Whether non-compliance with the Financial Regulator's Code of Conduct on Mortgage Arrears precludes an order for possession

Ratio Decidendi

The court lacked jurisdiction to grant possession of the registered land as the right to possession under s. 62(7) of the 1964 Act had not accrued before its repeal. For unregistered land, while jurisdiction existed, the bank's failure to comply with the Code of Conduct on Mortgage Arrears (specifically, not making every reasonable effort to agree alternative repayment arrangements) precluded the exercise of judicial discretion to grant possession.

Court Disposition

appeal allowed

Orders

  • Order for possession refused for both registered and unregistered land
  • No order for possession granted to the plaintiff bank