Leave to execute judgment refused where explanation of delay was provided

Court of Appeal - Statute of Limitations Act, 1957 - section 11(6) - Order 42, rule 23 - Order 42, rule 24 - Rules of the Superior Courts - application for leave to execute judgment ten years and six months later - €300,000 lent by ACC to first and third named defendants to fund purchase of residential property in Co. Mayo - secured by first legal mortgage and charge on investment property - March 2006 - registered by ACC on folio - sums lent to first and second named defendants (married couple) and fourth named defendant - latter loans secured on commercial property owned by fourth defendant with personal guarantee from first and second named defendants - mid-2009 - difficulty repaying loans - 5th October, 2010 - proceedings issued by ACC against all four defendants in respect of four loans - 10th November, 2010 - motion issued to transfer to Commercial List and enter judgments against the defendants - liberty to enter final judgment against respondent in sum of €271,637.31 - 15th November, 2010 - Kelly J. grants judgment to ACC against respondent - 18th November, 2010 - orders against first, second and fourth named defendants - April 2011 - ACC appointed receiver over investment property - February 2015 - property sold - €50,000 paid - one sixth of amount borrowed for same - residual amount €8,000 after costs - March 2012 - ACC registers judgment as judgment mortgage on folio of investment property - security for loan - January 2013 - registered on two additional properties owned by respondent - ACC had taken steps to realise security - 2017 - respondent petitioned High Court for bankruptcy - October 2017 - adjudicated bankrupt - October 2018 - properties vested in official assignee in bankruptcy - Link Asset Services gave proof to Insolvency Service of Ireland (ISI) - 2020 - discharged from bankruptcy - October 2020 - properties re-vested in him - 17th December 2018 - ACC sold interest in portfolio to Rabobank - 5th July, 2019 - assigned debt to appellant - 12th July, 2019 - appellant informed of this by letter - Mr. Webb says in affidavit stayed from doing this because of bankruptcy - respondent disputes original averment property over which it had benefit was kept out of the judgment mortgage - assertion no action taken for ten years - not correct - ACC not prevented from commencing proceedings either - McDonald J. refused application - bankruptcy didn't preclude from enforcement of judgment mortgage, reference to first charge in favour of First Active did not explain lapse of time - transmission of interest didn't explain lapse of time - Order 42, rule 23 - six-year time period without court leave - 14th November, 2016 - period expired - 12th May, 2021 - application for leave to execute - difference between judges as to explanation of the time - Statute of Limitations Act, 1957 - section 11(6) - 12-year time period - established that they were legally entitled to enforce the order - must explain delay but not obliged to account for entirety of period - value of sale reflects economic climate - balance of justice starting point has to be in favour of executing judgment - exercise of discretion in favour of a judgment debtor would require something fairly significant in terms of prejudice or changed circumstances - application dismissed - costs disposed of.