Judge orders stay on re-sale of Kerry couple's home if husband begins to pay off €30k judgement
A High Court judge has imposed a long stay on her order for sale of a couple's family home in Co. Kerry on condition the husband makes €700 monthly payments to another man until a €30,000 judgment over a defective home extension is paid off.
Ms Justice Marie Baker was satisfied Peter Crean could afford €700 monthly payments from March next to Michael Flynn, plus a further payment of €5,000 by December 2019.
If those were kept up, the judgment, less costs, would be discharged in about four years but, if there was default on payments, Mr Flynn could return to court, she said.
Mr Crean, a carpenter, had described himself as an "unemployed builder" on welfare payments who hoped to return to work soon, the judge noted. She believed he would do so and was also probably doing some work now for cash.
Accounts showed he spent some €400 monthly on betting with Paddy Power over six months last year and she considered that was a "wholly personal choice" and not a gambling addiction.
Michael Flynn got the €30,000 judgment in early 2016 against Mr Crean, of Keel, Ballylahive, Castlegregory, Co Kerry, after alleging Mr Crean "walked off the job" in October 2014.
Mr Flynn lives at Listowel Road, Ballybunion, with his wife, two children and elderly and unwell mother-in-law and hired Mr Crean to extend it to create a family room and downstairs bathroom.
Mr Flynn said the property was left with defects and in a poor dilapidated condition with exposure to the elements. His engineer's report suggested the extension has inadequate foundations and showed visible evidence of damp penetration, that a new floor slab was required and the space for location of the new downstairs bathroom was too narrow for a toilet.
The case came before the High Court via Mr Flynn's bid to enforce the judgment mortgage against Mr Crean.
Mr Crean's wife Michelle was joined as a co-defendant because of her interest in the home. She argued it would be unjust to sell her home to discharge a judgment that had nothing to do with her or the children.
Ms Justice Baker in April 2018 declared the judgment mortgage was well charged against the presumed 50% interest of Mr Crean in the family home but sought more information concerning the financial affairs of the Creans.
She later heard further evidence before issuing her judgment today.
She took into account several factors, including the "critical" factor the property at issue is a family home where the Creans live with their two young children and its sale would leave them homeless.
Because the property is mortgaged to KBC at €330,000 outstanding, and valued by the Creans at €270,000, a sale would not result in Mr Flynn getting any of the proceeds of sale and was likely to leave the Creans with an unsecured debt of between €50-75,000, making payment of the €30,000 judgment even "more remote".
The fact a sale may not realise enough funds to pay off a debt was not a factor, taken alone, that might defeat the interest of a judgment mortgagee, she stressed.
In this case, the "prudent and just" approach was to make an order for sale, with a long stay and with conditions including Mr Crean make €700 monthly payments to Mr Flynn beginning next month.
She believed he could afford that.
She also noted Mrs Crean works full time outside the home and the couple do not appear to have any appreciable overdraft.
Mr Crean had said in evidence he intended to satisfy the judgment but could not in his present circumstances and had paid none of the judgment to date, she noted. His offer to pay €200 monthly was rejected by Mr Flynn.
She found Mr Crean "evasive" and sometimes "untruthful" in his evidence and noted he had not expressed any regret the refurbishment works to the Flynn home were "wholly unsuitable to their needs".
