NI Court of Appeal: Court rejects argument that repossession will ‘kill’ Dungannon homeowners
Northern Ireland’s Court of Appeal has refused leave to appeal against a repossession order.
About this case:
- Citation: NICA 43
- Court:NI Court of Appeal
- Judge:Mrs Justice Keegan
The court found that there was no merit in any of the grounds, which included claims that the debt had been previously discharged, and that the repossession infringed human rights law by exposing the occupiers to serious injury or death.
This case arose in the context of repossession proceedings which began 15 years ago in relation to a property at 196 Bush Road, Dungannon, belonging to the defendants, Mr and Mrs Quinn.
By a deed dated 16 March 2016, a mortgage was advanced to the defendants by the plaintiff in the sum of £140,000 secured against the premises. Ms Justice McBride previously determined that the amount due and owing was now £289,138.17.
There were arrears of £99,619.14 on the basis of a monthly instalment of £1,389. The last payment was a payment of £140.00 made on 4 May 2018, and the property was in negative equity.
The court had not heard that there had been further payments made towards the debt or that any proposals to discharge the debt had been made.
On 6 December 2006 an originating summons was issued by the plaintiff mortgagee seeking repossession of the property due to default of the mortgage payments pursuant to Order 88 of the Rules of the Court of Judicature (Northern Ireland) 1980.
This appeal was concerned with the subsequent refusal of the High Court to grant a stay of enforcement of the repossession order.
Previous court proceedings
In June 2007 an order for possession was made, but it could not be enforced without leave whilst the defendants paid a sum of £1,600 per month to cover arrears and ongoing monthly instalments.
On 8 March 2013 the plaintiff applied for leave to enforce the possession order on the ground that the defendants defaulted in making payments. The defendants appealed to the Court of Appeal.
The Court of Appeal dismissed the appeal, and the first defendant applied for an order staying enforcement of the possession order on various grounds. This was dismissed, and a notice of appeal to the High Court was submitted on three grounds:
- that enforcement should be stayed because there is a pending action inclusive of claim and counterclaim;
- that the first defendant wishes to produce evidence of tender of payment and discharge of the debt by way of a private trust and equity; and
- that enforcement would breach various human rights of the first defendant and his wife by killing them or causing a serious risk to their lives.
In 2022 a notice of appeal to the Court of Appeal sought leave to appeal the order refusing a stay of enforcement, on the grounds of denied equality of arms; denied right of audience for McKenzie friend; and denied jurisdiction.
The court noted that the power to grant a stay of enforcement of a repossession order is discretionary, and a stay may be granted subject to conditions with regard to payment by the mortgagor of any sum secured by the mortgage, as the court thinks fit.
The court observed that the appeal grounds were not well formed, as the notice of appeal did not comply with Order 59 Rule 3(2) of the Rules of the Court of Judicature (Northern Ireland) 1980.
The previous courts had allowed some “latitude” here, but the court warned that “if appeals come by way of ill-defined grounds amounting to complaints rather than points of adjudication the Court of Appeal may deal with non-compliant notices by way of administrative adjudication”.
The court also noted that an interlocutory order application for leave to appeal should be brought within seven days. Here, the plaintiff was served notice six days out of time.
However, bearing in mind that the first named defendant was acting as a litigant in person, the court did not consider the delay was fatal to the application. The court also allowed the first named defendant to have the assistance of a McKenzie friend.
In relation to points 1 and 2, the “obvious point” was that there was no evidence put forward that was not already put before previous courts. These claims had been “comprehensively dealt with”.
In relation to the claim that “payment has been tendered” the court noted the judgment of Lord Justice Stephens, where he said:
“We agree with the conclusions of the judge that these documents are legally meaningless. […] In any event the creation of a trust (however valuable) does not constitute a tender of payment.”
The court therefore dismissed both of these grounds.
On point 3 above, the court had received no evidence to substantiate the strong claims that death or serious injury would ensue upon repossession.
While they understood the distress that these types of proceedings inevitably cause, the reality was that: “Everyone who obtains a mortgage must understand the consequences of non-payment of the debt. This argument does not result in the grant of a stay of enforcement.”
The court also noted that there was no merit in the claim that there had been a “denial of jurisdiction.” The court was clearly empowered to consider this case and exercise a discretion pursuant to the 1970 Act. This was a baseless ground of appeal.
Application for leave to appeal was refused. The court found this to be a “hopeless application” and a repeat of previous arguments already determined at first instance and in a previous appeal.
The court noted: “Sadly, this is another example of a case where a debt has accrued and there really is no alternative for the mortgagee other than to seek repossession.”
Immediately after the judgment was delivered on 18 July 2022, Mr Quinn addressed the court and submitted that he had, on 15 July 2022, tendered payment of the entire loan in the sum of £389,886.64 by way of “cash” payment by special delivery post.
The court was informed that no cash payment had in fact been made and all that was received was correspondence from Mr Quinn titled ‘Private Notice’ which purported to settle the debt.
There was nothing in the above that altered the court’s judgment.