Start Mortgages DAC v Kavanagh & Anor (Approved) [2023] IEHC 37 (30 January 2023)

Start Mortgages DAC v Kavanagh & Anor (Approved) [2023] IEHC 37 (30 January 2023)

Order 124 RSC does not provide jurisdiction to set aside a final, unappealed judgment and order; the moving party failed to establish a fundamental denial of justice or any exceptional circumstance justifying reopening the 2016 order; the arguments advanced had already been determined in the original proceedings and cannot be re-litigated; and any alleged irregularity did not result in prejudice or breach of constitutional rights.

Citation
[2023] IEHC 37
Parties
Plaintiff: Start Mortgages DAC; First Defendant: Simon Kavanagh; Second Defendant: Deirdre Kavanagh
Jurisdiction
Ireland
Judgment Date
30 January 2023
Procedural Posture
Possession Proceedings (special Summons) / Application to Set Aside Final, Unappealed Judgment and Order
Outcome
application to set aside judgment refused
Legal Topics
Setting Aside Judgments, Finality of Judgments, Securitisation and Mortgage Enforcement, Irregularity in Proceedings, Constitutional Rights in Civil Litigation
Civil Procedure Property Law Mortgage Law Setting Aside Judgments Finality of Judgments Securitisation and Mortgage Enforcement Irregularity in Proceedings Constitutional Rights in Civil Litigation

Case Brief

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Parties

Start Mortgages DAC

Plaintiff

Simon Kavanagh

First Defendant

Deirdre Kavanagh

Second Defendant

Procedural Posture

Possession Proceedings (special Summons) / Application to Set Aside Final, Unappealed Judgment and Order

Legal Issues

  1. 1 Whether the High Court has jurisdiction to set aside a final, unappealed order for possession under Order 124 RSC or inherent jurisdiction
  2. 2 Whether alleged irregularities or developments in case law justify setting aside the 2016 order for possession
  3. 3 Whether the moving party suffered a fundamental denial of justice warranting exceptional relief

Ratio Decidendi

Order 124 RSC does not provide jurisdiction to set aside a final, unappealed judgment and order; the moving party failed to establish a fundamental denial of justice or any exceptional circumstance justifying reopening the 2016 order; the arguments advanced had already been determined in the original proceedings and cannot be re-litigated; and any alleged irregularity did not result in prejudice or breach of constitutional rights.

Court Disposition

application to set aside judgment refused

Orders

  • Application to set aside the final, unappealed judgment and order of 18 July 2016 is dismissed.
  • Reliefs sought in the notice of motion of 10 November 2022 are refused.