Start Mortgages DAC v Gawley & Anor (Approved) [2023] IEHC 176 (17 April 2023)

Start Mortgages DAC v Gawley & Anor (Approved) [2023] IEHC 176 (17 April 2023)

The plaintiff provided a reasonable explanation for the delay in executing the order for possession, including the pendency of an appeal, attempts to engage with the defendants, and the impact of the Covid-19 pandemic. No prejudice to the defendants was established. The legal test for granting leave to execute under Order 42, rule 24 was met. Objections raised by the defendants were either without merit, unsupported by evidence, or already determined and thus res judicata.

Citation
[2023] IEHC 176
Parties
Plaintiff: Start Mortgages DAC; Defendant: Peter Gawley; Defendant: Sandra Gawley
Jurisdiction
Ireland
Judgment Date
17 April 2023
Procedural Posture
Application for Leave to Issue Execution of Order for Possession / Judgment on Application for Extension of Time to Execute Order for Possession
Outcome
Leave to issue execution granted
Legal Topics
Execution of Judgments, Mortgage Possession, Extension of Time, Order 42 Rule 24, Res Judicata, Consumer Credit
Civil Procedure Property Law Banking Law Execution of Judgments Mortgage Possession Extension of Time Order 42 Rule 24 Res Judicata +1 more

Case Brief

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Parties

Start Mortgages DAC

Plaintiff

Peter Gawley

Defendant

Sandra Gawley

Defendant

Procedural Posture

Application for Leave to Issue Execution of Order for Possession / Judgment on Application for Extension of Time to Execute Order for Possession

Legal Issues

  1. 1 Whether the plaintiff has provided a reasonable explanation for the delay in executing the order for possession beyond six years
  2. 2 Whether any prejudice to the defendants justifies refusal of leave to execute
  3. 3 Whether objections raised by the defendants preclude granting leave to execute

Ratio Decidendi

The plaintiff provided a reasonable explanation for the delay in executing the order for possession, including the pendency of an appeal, attempts to engage with the defendants, and the impact of the Covid-19 pandemic. No prejudice to the defendants was established. The legal test for granting leave to execute under Order 42, rule 24 was met. Objections raised by the defendants were either without merit, unsupported by evidence, or already determined and thus res judicata.

Court Disposition

Leave to issue execution granted

Orders

  • Plaintiff granted leave to issue execution pursuant to Order 42, rule 24 in respect of the order for possession dated 7 March 2011.
  • Plaintiff provisionally entitled to costs of the motion against the first named defendant, subject to further submissions within two weeks if either party wishes to contest costs.