Court won’t set aside possession order where agreement was both signed and witnessed

High Court - 5th June, 2019 - order for possession - 21st April, 2023 - Circuit Court refused applicant's application to set aside - issue regarding consent - solicitor says instructions not taken - 4th July, 2003 - defendants' home registered in joint name - 17th July, 2007 - loan offer made - 10th September, 2007 - indenture of mortgage and charge - 16th December, 2009 - charge registered - purpose to release equity from home and purchase residential property in Portugal - €1,985,000.00 advanced - monthly repayments over 38 years - 4th December, 2014 - plaintiff registered as owner of the charge - 8th September, 2015 - plaintiffs wrote to defendants stating mortgage outside mortgage arrears resolution process - advised in relation to same - 31st March, 2016 - payment demanded within ten days - 12th April, 2016 - vacant possession of family home demanded - 8th April, 2016 - reply to 31st March, 2016 letter, authority to accept service of proceedings - 1st December, 2016 - civil bill for possession issued - 17th June, 2016 - appearance filed - 6th July, 2016 - letter consenting to late appearance even though already done - before county registrar on three occasions - November 2017 - adjourned with liberty to re-enter - amendment to correct error in civil bill needed - 30th April, 2019 - matter listed - March 2019 - affidavit confirmed account 72 months in arrears - 30th April, 2019 - back before Circuit Court, appearance on behalf of first named defendant only - 28th May, 2019 - letter requesting clarification firm was appearing on behalf of both defendants - 5th June, 2019 - appearance on behalf of both - order for possession - stay for 12 months - no steps taken on foot of same - 27th June, 2022 - proposal to settle - 8th September, 2022 - letter confirmed request to settle closed - 19th October, 2022 - possession execution order - 18th January, 2023 - plaintiff obtained possession - 8th February, 2023 - application to set aside - second named defendant claimed no knowledge of transaction - unaware of claims arising from cessation of business - argues signature "simulated" - wants to engage in process to resolve debt - 21st February, 2023 - affidavit of solicitor - says did not meet the second named defendant - court view fraud should not be visited against the plaintiff - 21st April, 2023 - Circuit Court Order - no setting aside of consent order - 28th April, 2023 - notice of appeal lodged - 15th May, 2023 - High Court for mention - 30th May, 2023 - ex parte application - stay on execution until 7th June, 2023 - notice of motion - 30th May, 2023 - interlocutory order for seven days - 11th July, 2023 - notice of motion - extension of time for service and lodgment - second named defendant argued four points - demand letter did not plead default - transfer not under seal - insufficient evidence of compliance with Code of Conduct in Circuit Court - argued there were errors on the face of the execution order - solicitor was on record when appearance entered - court has jurisdiction to set aside - must now consider whether it should - demand letter - monthly repayment condition breached in demand letter - agreement was signed and witnessed - no evidence was before the court in relation to the Code of Conduct - errors on face of executed order - second named defendant accepted errors on the face of the execution order did not affect its impact - Constitution of Ireland - Article 40.3 - Article 43 - not breached - evidence of no knowledge not accepted - not plaintiff's fault - no delay either - not circumstances that warrant set aside - July 2023 - extension of time sought - six months after execution - no bona fide intention within permitted time - court considers no knowledge as "something like mistake" - arguable grounds of appeal not met - application refused.