Santander (UK) v Plc McAlary [2019] NICh 14 (19 December 2019)

Santander (UK) v Plc McAlary [2019] NICh 14 (19 December 2019)

The court does not have jurisdiction to stay a possession order to permit a mortgagor to effect a shortfall sale where the proceeds will not discharge the mortgage debt in full; section 36 of the Administration of Justice Act 1970 and the inherent jurisdiction only permit suspension where full repayment is possible,...

Source-derived case information.

Citation
[2019] NICh 14
Parties
Plaintiff/respondent: Santander (UK) PLC; Defendant/appellant: Liam McAlary
Jurisdiction
Northern Ireland
Judgment Date
19 December 2019
Procedural Posture
Appeal Against Possession Order and Refusal of Stay / Judgment on Appeal
Outcome
appeal dismissed
Legal Topics
Mortgage Possession, Shortfall Sale, Court's Jurisdiction to Stay Possession, Negative Equity
Property Law Mortgage Law Civil Procedure Mortgage Possession Shortfall Sale Court's Jurisdiction to Stay Possession Negative Equity

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Parties

Santander (UK) PLC

Plaintiff/respondent

Liam McAlary

Defendant/appellant

Procedural Posture

Appeal Against Possession Order and Refusal of Stay / Judgment on Appeal

Legal Issues

  1. 1 Does the court have jurisdiction to stay a possession order to permit a mortgagor to effect a shortfall sale?
  2. 2 Do Order 88 and Order 31 of the Rules of the Court of Judicature (Northern Ireland) 1980 confer such jurisdiction?
  3. 3 Should English authorities based on the Law of Property Act 1925 be followed in Northern Ireland?

Ratio Decidendi

The court does not have jurisdiction to stay a possession order to permit a mortgagor to effect a shortfall sale where the proceeds will not discharge the mortgage debt in full; section 36 of the Administration of Justice Act 1970 and the inherent jurisdiction only permit suspension where full repayment is possible, and English authorities based on the Law of Property Act 1925 are not applicable in Northern Ireland.

Court Disposition

appeal dismissed

Orders

  • application for stay refused
  • appeal against possession order dismissed