Claim for possession was not statute barred as demand for payment was made after mortgagor’s death

Noonan J (nem diss): Appeal of a decision of the High Court granting an Order for possession of a premises which the appellant claims was her principle private residence - the appellant's partner ("the deceased") died on the 14th February, 2013 - he had previously entered into a loan agreement with the respondent's predecessor - the deceased defaulted but continued to make intermittent payments and the respondent's predecessor did not move to call in the loan or enforce the security at any time before his death - the appellant alleges that he made a will appointing her as his executrix and devising the above property to her - the appellant was residing in the property with the deceased at the time of his death and shortly thereafter, instructed solicitors to correspond with the predecessor on the express basis that she was the deceased’s executrix - the appellant’s solicitors wrote to the respondent in September 2015 stating that she now did not intend to take out a grant of probate and intended to continue residing in the property for the foreseeable future - in August 2016, following the transfer of the loan, the respondent made a formal demand for payment of the outstanding arrears and the balance of the loan facility - the respondent made a demand for possession of the property in September 2016 - both demands were addressed to the appellant in her capacity as personal representative of the estate of the deceased and, in relation to the demand for possession, in her capacity as occupant of the property - whether the proceedings ought to have been brought in the Circuit Court - s.3 of the Land and Conveyancing Law Reform Act, 2013 - whether the proceedings were statute barred - s.9(2) of the Civil Liability Act, 1961 - appeal dismissed

"Such replication would have been unnecessary were the two statutes to be construed as one. It seems to me therefore that the expression “mortgagor” in the 2013 Act [the Land and Conveyancing Law Reform Act, 2013] must be construed by reference to its natural and ordinary meaning, being the person who created the mortgage. Clearly that cannot be the appellant. Even adopting a more expansive definition of the kind to be found in the 2009 Act, it is to my mind clear that the appellant cannot on any reasonable interpretation of the expression be regarded as a “mortgagor” for the purposes of the 2013 Act. Accordingly, s. 3 of that Act does not apply to the appellant and this ground of appeal must fail."

"In the present case, in my judgment it was only following upon the making of the demand for payment on the 16th August, 2016 that the facts were in place which, if proved, would have entitled the respondent to judgment. It follows therefore that the cause of action only accrued on that date and is not a cause of action that was pending at the date of Mr. Melsop’s death or one that survived against his estate. The claim herein is therefore not statute barred and the second ground of appeal also fails."

Collins J (concurring): whether the claim is statute barred - interpretation of the mortgage clauses