Everyday Finance Ltd v Marsh (Approved) -[2025] IEHC 326- (03 June 2025)

Key Facts

Transaction Type

Tax Type

Issues

• The court held the burden to prove the first loan's statute-barred status lies with the defendant, but noted insufficient evidence to resolve this at the summary stage. A further hearing was ordered to address this and related issues.
• The plaintiff's inability to provide unredacted evidence of the 1999 Mortgage's transfer to them under the 2007 Order and subsequent conveyances invalidated their claim to enforce the security. The court ruled this failure alone justified refusing summary possession.
• The court determined that the second and third facility letters did not secure the loans on the family home due to Mrs. Marsh's failure to provide prior written consent under the Family Home Protection Act, 1976. This rendered those loans unsecured and invalidated Everyday Finance's claim for possession based on them.
• The 1999 Mortgage was deemed inadmissible in evidence because additional stamp duty for the three facility letters' advances was never paid. The court emphasized that stamp duty must be settled before final orders can be made, and the plaintiff failed to prove compliance.

Holdings

• The application for possession was denied on a summary basis due to Everyday Finance’s failure to prove title to the 1999 Mortgage. The court emphasized the need for sufficient documentation to establish ownership of the mortgage and the underlying loans.
• The court directed a further hearing for the first facility letter to allow Everyday Finance to provide evidence of ownership and for the defendant to challenge potential statute-barred claims. The matter remains unresolved pending this hearing.
• The court held that the 1999 Mortgage Deed must be upstamped to cover the first loan’s additional advances. Without proper stamping, the Deed is inadmissible in evidence, and Everyday Finance must address this before proceeding with the application for possession.
• The court determined that the second and third facility letters did not secure the Property as Mrs. Marsh did not provide prior written consent under the Family Home Protection Act, 1976. The 1999 Mortgage is invalid for these loans, and any attempt to use it for the third loan is further undermined by its reference to a separate property.

Remedies

• The court held that the second and third loans were not validly secured on the Property because Mrs. Marsh did not provide prior written consent under the Family Home Protection Act. This rendered those loans unsecured, and thus, Everyday could not rely on them to seek possession of the family home. The defendant's appeal against the initial Order for possession was upheld in part for these loans.
• An Order for possession was initially made by Judge Comerford on 11 October 2024, limited to the first loan (Facility Letters 0007605 and 00084955). However, the court determined that the second and third loans were not secured on the Property due to non-compliance with the Family Home Protection Act. The matter was not dismissed but directed to further evidence to establish Everyday's ownership of the first loan and the 1999 Mortgage, as well as the defendant's potential statute of limitations defence. The court also clarified that proceeds from any sale of the Property would apply only to the first loan.
• The court directed that: (i) Everyday must prove its ownership of the first loan and the 1999 Mortgage; (ii) the defendant must provide evidence to challenge the statute of limitations defence; and (iii) arrangements must be made for stamp duty on the 1999 Mortgage to cover the first loan. The matter will proceed on affidavit without remitting to plenary hearing.

Tax Issue Category

Legal Principles

• The admissibility of the 1999 Mortgage was questioned due to insufficient stamp duty on further advances. Section 127 of the Stamp Duties Consolidation Act, 1999, requires instruments to be sufficiently stamped to be received in evidence, and the court emphasized the need for proper stamping to cover additional advances.
• The plaintiff (Everyday) failed to meet its burden of proof to establish title to the 1999 Mortgage and the underlying loan. The court held that the defendant bears the onus to demonstrate that the right to possession is statute-barred, but the plaintiff must first prove its entitlement to the mortgage and the validity of the debt.
• The court applied a purposive interpretation of the Family Home Protection Act, 1976, emphasizing that prior written consent from the non-owning spouse must be express, not implied, to secure a loan on the family home. This approach was used to distinguish the case from Nestor v. Murphy, where both spouses were joint owners.

Precedent Name

• Bank of Ireland v. Purcell
• Start Mortgages DAC v. Clarke
• Nestor v. Murphy
• Flynn v. National Asset Loan Management Limited
• Bank of Ireland v. Cody
• Start Mortgages DAC v. Gawley
• Bank of Ireland v. O'Malley

Key Disputed Contract Clauses

• Clause 6(1) allowed the mortgagee to demand immediate payment, while Clause 6(2) permitted sale or receiver appointment without prior notice under the Conveyancing Act, 1881. The court noted these provisions' relevance to the first loan but emphasized their enforceability hinged on resolving title and stamp duty compliance.
• This clause in the Second Facility Letter mandated that the non-owning spouse (Mrs. Marsh) must provide a statutory declaration and consent before the family home could be secured against the loan. The court found this requirement unmet, as Mrs. Marsh never furnished the necessary declaration, invalidating the second and third loans as secured on the Property.
• Clause (2) of the terms and conditions for the First Facility Letter required the 1999 Mortgage to be 'duly stamped' to cover further advances. The court ruled that this obligation was unfulfilled, rendering the 1999 Mortgage inadmissible in evidence for the second and third loans due to unpaid stamp duty on subsequent advances.
• Clause 4(1) of the 1999 Mortgage obligated Mr. Marsh to pay all sums secured by the mortgage on demand. The court acknowledged this clause's validity but deferred final determination pending proof of Everyday's ownership of the mortgage and resolution of stamp duty issues.
• The Third Facility Letter included a clause stating that 'any other security now or in the future held by us for your liabilities in general will be security for any liabilities under this Agreement.' The court held this provision inapplicable to the family home, as the 1999 Mortgage was not security for Mrs. Marsh's liabilities and the O'Brien's Bridge property was separately referenced.

Cited Statute

• Stamp Duties Consolidation Act, 1999
• Consumer Credit Act, 1995
• Civil Law (Miscellaneous Provisions) Act, 2020
• Family Home Protection Act, 1976
• Unfair Terms in Consumer Contracts Regulations, 1995
• Statute of Limitations

Judge Name

• Ms. Justice Stack
• Justice Cregan
• Judge Comerford

Passage Text

• As Everyday has failed to prove the transfer to it of the 1999 Mortgage, that is sufficient, at least at this stage, to refuse to grant the application for possession on a summary basis pursuant to Order 5B.
• In the circumstances, it is not necessary to deal with the arguments of the defendant and notice party to the effect that the terms and conditions of the second and third loan were void having regard to the Unfair Terms in Consumer Contracts Regulations, 1995, which, it has to be said, were not very fully developed. The essential point as I understood it, however, was that any provision of the terms and conditions of the second and third loans which could be relied upon to avoid the application of the 1976 Act was void and unenforceable.
• As a result, it seems to me that the loans the subject of the Second and Third Facility Letter are not secured on the Property and those facility letters cannot be relied upon in order to seek possession of the Property.

Damages / Relief Type

• Possession denied for second and third loans (€64,000 and €80,000) due to invalid security under the Family Home Protection Act, 1976.
• Order for possession granted in respect of the first loan (Facility Letters 0007605 and 00084955) pending further evidence of ownership and stamp duty compliance. Amount claimed: €79,239.75.