Judge refuses debt fund's request to add widow's house and land to possession application

High Court reporters

The High Court has refused a debt fund’s request to include a widow’s house and an additional 28 acres of farmland on an application for possession.

Promontoria (Pluto) Limited claimed its debt was secured over 53 acres of land in Co Wexford owned by Patience Nolan and wanted the court to allow it to amend its civil bill for possession to include this.

However, this contention was undermined by its civil bill, submitted to the Circuit Court, identifying the mortgaged property as covering about 25 acres of registered land, Ms Justice Marguerite Bolger said in a ruling published this week.

Promontoria’s “apparent lack of interest” in whether the house on the unregistered portion of land is likely to have been Ms Nolan’s family home for more than two decades is consistent with Ms Nolan’s claim that the mortgage never covered the unregistered land or the home, the judge added.

She refused Promontoria’s application seeking to amend its civil bill for possession to include the unregistered portion and property. The Circuit Court can hear the substantive claim for possession excluding these assets.

Setting out the background, Ms Justice Bolger said Ms Nolan purchased some 53 acres of registered and unregistered land and a house on the unregistered portion in Tullycanna in the barony of Bargy, Co Wexford, in 1998.

Her debt to Promontoria arose out of a 2000 mortgage she took out with her husband, now deceased, the judge said.

Arrears

She fell into arrears, causing Promontoria, which acquired the debt from the mortgage lender, to issue a civil bill in 2019 for possession of a “plot of ground” of about 25 acres in Tullycanna and Barony of Bargy, Co Wexford.

It then asked the Circuit Court to rectify its application to say “all that part of the lands” of Tullycanna, so it could realise what it claimed was the full security given by Ms Nolan for the mortgage.

That court refused, so Promontoria appealed to the High Court.

Ms Nolan submitted that her mortgage covered only the registered land, which included high-quality agricultural land, road frontage and sites with planning permission.

Dismissing the fund’s request, Ms Justice Bolger said the 1998 deed of transfer “undoubtedly” includes the unregistered land, but that does not mean this land is included in the 2000 mortgage deed.

Promontoria sought to rely on a letter Ms Nolan sent at the time of her mortgage application, in which she stated that security for the facility would be her property valued at €1.6 million and a copy of the valuation report over the entire property including the family home.

Ms Justice Bolger said the total valuation was “significantly greater” than the amount of the mortgage drawn down.

She did not accept that the letter and valuation report could, on their own, constitute evidence of the mortgage including the unregistered land.

There is a prejudice to Ms Nolan in permitting the amendments sought by Promontoria as they allow it to make a new case, she said.

The judge refused to allow the amendments and affirmed the Circuit Court’s decision.