Supreme Court: Woman loses appeal in case involving the repossession of her late mother’s house
A woman who failed to notify the lender in a “lifetime loan” mortgage agreement of her mother’s death has lost an appeal against the decision to refuse an extension of time to challenge the order for possession granted to the lender.
Dismissing the appeal, Ms Justice Iseult O’Malley stated that the order for possession did not violate the woman’s constitutional rights, and that the woman had no grounds for an extension.
In 2007, the late Noelle McGovern entered into a mortgage agreement with Seniors Money Mortgages (Ireland) (the lender), secured by her residence which was valued by the lender at €1.2m. Ms McGovern was 76 at the time of the agreement, and lived in the premises with her daughter, Jacqueline McGovern (the appellant), and her son-in-law. A total of €300,000 was drawn down under the terms of the loan.
The interest on the loan ran from the date of the loan, however, no instalment payments were required – instead, demand for repayment could be made 12 months after Mrs McGovern’s death (or upon the sale of the mortgaged property). It was a term of the agreement that the personal representative should inform the lender of Mrs McGovern’s death as soon as practicable. When the loan was agreed, the appellant confirmed that she understood that she and her husband would not have a right to continue to reside in the property unless the loan was paid in full.
In November 2009, Mrs McGovern died. In those circumstances, the loan had fallen due for repayment in November 2010. However, the appellant failed to inform the lender – who only became aware until October 2014. At this point, the total due was €422,190.45.
Mrs McGovern left a will under which the appellant inherited her entire estate. However, the appellant also failed to extract a grant of probate to the estate, and consequently, Derek Gately was appointed as administrator ad litem for the purpose of dealing with the present proceedings.
Order for possession
In November 2015, the lender sought various reliefs, including an order for possession of the mortgaged property under Section 67(2) of the Registration of Title Act 1964; or in the alternative, an order providing from the sale of the property and the distribution of the proceeds.
Firstly, Ms Justice Marie Baker rejected Mr Gately’s contention that the claim was statute barred, confirming that the two-year limitation period under Section 9(2) of the Civil Liability Act 1961 applied to claims subsisting at the time of death – not to claims created by death. Ms Justice Baker found that the limitation period was six years – which the lender had complied with. In those circumstances, Ms Justice Baker found that there was no reason not to make an order for possession.
Considering the appellant’s position and whether she might have a right of residence, Ms Justice Baker said that even if the appellant did have such a right, it would be subject to a mortgage – the appellant could not inherit what her mother did not have.
Ms Justice Baker made the order for possession but granted a stay on that order until January 2018 to allow the appellant to seek financial advice and come to an arrangement with the lender. The order for possession was perfected on 16 March 2017.
In April 2018, the appellant issued a motion in the Court of Appeal seeking an extension of time to appeal against the High Court orders, however, the appellant was a year out of time. Mr Justice Brian McGovern rejected the appellant’s submission that her “financial and medical problems had prevented her from filing a notice of appeal, in the absence of evidence to that effect. He also considered that there was no satisfactory evidence that she had formed an intention to appeal at the relevant time, as required by Éire Continental”.
Ms Justice O’Malley explained that the exercise of an appellate court’s discretion to extend, or to refuse to extend, time within which to appeal, has for decades been informed by the judgment of the Supreme Court in Éire Continental Trading Co Ltd v Clonmel Foods Ltd.  IR 170.
Ms Justice O’Malley said “…it may be that the very familiarity with [Éire Continental] on the part of judges and practitioners can on occasion lead to the assumption that it confines the discretion by reference to a set of mandatory conditions, and that failure on the part of a would-be appellant to comply with one or more conditions must lead to a refusal of an extension”. With that in mind, Ms Justice O’Malley said it would be “helpful to commence with a short examination of the judgment and of some of the more recent decisions of the Court”.
In Éire Continental, Mr Justice Cecil Lavery referred to a submission by counsel for the respondent that there were three conditions that “must” be satisfied before the court would allow an extension:
- “The applicant must show that he had a bona fide intention to appeal formed within the permitted time.
- He must show the existence of something like mistake and that mistake as to procedure and in particular the mistake of counsel or solicitor as to the meaning of a rule was not sufficient.
- He must establish that an arguable ground of appeal exists.”
Mr Justice Lavery then stated that in his opinion these were “proper matters for the consideration of the Court” in determining whether time should be extended. However, he added that the these conditions “must be considered in relation to all the circumstances of the case. In the words of Sir Wilfred Greene M.R., in Gatti v Shoosmith (a case resembling the present in many ways): - ‘The discretion of the Court being, as I conceive it, a perfectly free one, the only question is whether, upon the facts of this particular case, that discretion should be exercised.’”
Ms Justice O’Malley said there was a tendency to take Mr Justice Lavery’s passage citing the three conditions (which simply summarised a submission from counsel for the respondent) as encapsulating the ruling of the Supreme Court in Eire Continental, but that it had to be remembered that the Court “did not, in fact, lay down the “rigid rules” that the respondent in Éire Continental advocated”.
After considering more recent case law applying Éire Continental, Ms Justice O’Malley outlined the appellant’s submissions. Ms Justice O’Malley concluded, firstly, that the High Court judge had jurisdiction to make the order for possession which did not violate the appellant’s constitutional rights.
Secondly, Ms Justice O’Malley found that the appellant had no arguable ground. Ms Justice O’Malley said that, even if the appellant’s case was “arguable” or “stateable”, the Court should not exercise discretion to extend time as there was a significant delay in seeking the extension.
© Irish Legal News Ltd 2020