ACC Bank Plc v Ruddy

• Jurisdiction: Ireland
• Judge: Mr. Justice Moriarty
• Judgment Date: 05 March 2013
• Neutral Citation: [2013] IEHC 138
• Docket Number: [No. 205 S.P./2011]
• Court: High Court
• Date: 05 March 2013

[2013] IEHC 138

THE HIGH COURT

[No. 205 S.P./2011]

ACC Bank PLC v Ruddy

BETWEEN

ACC BANK PLC

PLAINTIFF

AND

JOHN RUDDY

DEFENDANT

O'SULLIVAN v SUPERINTENDENT IN CHARGE OF TOGHER GARDA STATION 2008 4 IR 212 2008/51/10849 2008 IEHC 78

CHIEF ADJUDICATION OFFICER v MAGUIRE 1999 2 AER 859 1999 1 WLR 1778

REGISTRATION OF TITLE ACT 1964 S62(7)

INTERPRETATION ACT 2005

START MORTGAGES LTD v GUNN & DUNNE UNREP DUNNE 25.7.2011 2011/46/13101 2011 IEHC 275

LAND AND CONVEYANCING LAW REFORM ACT 2009 S8

Debt – Loan agreements - Repayment - Letter of demand - Enforcement of securities - Entitlement to enforce - Creditor and borrower - Repeal of legislation - Registration of Title Act 1964 - Land and Conveyancing Law Reform Act 2009

Facts: The plaintiff brought enforcement proceedings against the defendant for the non-repayment of a loan. In this particular motion, the court was asked to rule whether the plaintiff, as a lender, was entitled to enforce securities held over lands of the defendant for repossession and sale or whether that course of action was precluded by law. Until its repeal on the 1st December 2009, lenders were able to pursue such a course of action pursuant to s. 62(7) of the Registration of Title Act 1964 (the ‘1964 Act’). That legislation was replaced with the Land and Conveyancing Law Reform Act 2009. The plaintiff sought possession of two properties charged by the defendant to it under Indentures of Charge, dated the 8th February 2005 and the 22nd June 2005 respectively, pursuant to s. 62(7) of the 1964 Act. The Indentures of Charge had been subsequently registered on the 1st October 2008 and the 19th July 2006 respectively.

The matter was heard before the Master who determined that the plaintiff was not entitled to such enforcement, and struck out proceedings. Before the High Court on the 7^th February, that order was overturned without deciding the question of the extent of a plaintiff”s rights.

Held by Moriarty J that the same issue was dealt with by Dunne J in Start Mortgages Limited v. Robert Gunn & Maura Dunne (with judgment in that case delivered on the 25th July 2011) which laid out the current law and was to be applied to the present case. The defendant had defaulted in repayment at an early stage, and there was evidence to show the plaintiff had prepared letters of demand for repayment on the 9^th November 2009, a necessary step before enforcement proceedings would be issued. However, the letters were mistakenly sent to the wrong address meaning the defendant did not receive them, with subsequent letters of demand seen after the repeal of the 1964 Act on the 1^st December 2009.

The plaintiff had argued that the letters of demand prepared on the 9^th November 2009 were sufficient as demands for repayment for the purposes of the 1964 Act even if the defendant did not receive them. This was held to be wrong. The act of making a demand involved a bilateral process of communication which meant if the subject of the demand was not aware of the process, the demand could not be said to have been made prior to the 1964 Act”s repeal and so the relevant provisions of that Act could not be enforced in the plaintiff”s favour. An order striking out proceedings was therefore made. No order was made for costs.

Order striking out proceedings granted.

Mr. Justice Moriarty

1 In this Special Summons hearing, placed in the list for 7^th February last by Dunne J. for hearing, the substantive immediate differences between the parties were essentially reduced to a net issue, and I propose to address this in a short and condensed judgment. Given that the defendant appeared in person, indicating that financial exigencies had compelled him to dispense with solicitors formerly acting, I am obliged to Mr. Bredin, B.L., who presented matters on behalf of the plaintiff with scrupulous fairness. I have considered the arguments advanced on both sides, the detailed written submissions furnished on behalf of the plaintiff and the several Irish, English and Scottish authorities referred to. It does not seem to me necessary to digress into a lengthy consideration of all the nuances of these judgments, not least the distinction between "acquired" and "accrued" rights, which receives what not unfairly could be described as somewhat mannered consideration in some of the older cases, and perhaps is most helpfully addressed in O'Sullivan v. Superintendent in charge of Togher Garda Station, reported together with a similar case at [2008] I.R. (Part 1, Vol. 4) at p. 212. Likewise, having examined dictionary definitions of "acquire" and "accrue", I find the judgment of Simon Brown L.J. in Chief Adjudication Officer &Anor v. Maguire [1999] WLR 1778, more cogent and helpful that some other authorities.

2 Of this, paramount is whether or not, in the somewhat convoluted course of statutory events affecting the rights of lenders to enforce securities over lands for borrowings in default, that have arisen in recent years, the plaintiff retains an enforceable entitlement in the events that have transpired, or whether that...