Michael Walsh obtains permission to appeal on two important points of principle concerning receivers of mortgaged property
21st February 2019
Michael Walsh has obtained permission to appeal to the High Court on behalf of the mortgagors in a case which will give the first known decision of the Senior Courts on the following questions:
- Whether a receiver can sue a mortgagor for possession of the mortgaged property as the agent of the mortgagor; and
- Whether section 36 of the Administration of Justice Act 1970 applies to receivers appointed over a mortgaged property.
At first instance the trial judge found that the fixed charge receivers were entitled to sue the mortgagor in the mortgagor’s own name for possession of the property, which is their family home. The court also found that the wording of sections 36 and 39 of the Administration of Justice Act 1970 meant it did not apply to receivers seeking possession of a mortgaged property. Accordingly, the court had no jurisdiction to exercise the discretion under section 36(2) to adjourn proceedings or stay, suspend or postpone execution of the possession order.
The appeal will be heard later this year.
Michael is instructed by RadcliffesLeBrasseur.