Bank of Ireland Mortgage Bank v Peter Cody

• Jurisdiction: Ireland
• Judge: Baker J.
• Judgment Date: 14 April 2021
• Neutral Citation: [2021] IESC 26
• Court: Supreme Court
• Docket Number: S:AP:IE:2020:000038,[S.C. No. 38 of 2020]
• Date: 14 April 2021

Between/

Bank of Ireland Mortgage Bank

Plaintiff/Appellant

and

Peter Cody

Defendant

and

Heather Cody

Defendant/Respondent

[2021] IESC 26

Clarke C.J.

O'Donnell J.

MacMenamin J.

Dunne J.

Baker J.

S:AP:IE:2020:000038

THE SUPREME COURT

Summary possession – Statutory provision – Registration of Title Act 1964 s. 62(7) – Appellant appealing against the order of the High Court setting aside an order for possession of certain registered lands – Whether the trial judge was correct that the appellant had not established its claim

Facts: The appellant, Bank of Ireland Mortgage Bank (the Bank), appealed to the Supreme Court against the order of the High Court (Simons J) made on 28 February 2020, setting aside an order for possession of certain registered lands in County Wexford for the reasons set out in a written judgment delivered on 31 January 2020 ([2020] IEHC 34). The first defendant, Mr Cody, took no part in the action before the Circuit Court and did not engage with the appeal. The second defendant, Ms Cody, therefore was the sole respondent. The issues in the appeal were as follows: (a) whether the trial judge was correct that the Bank had not established its claim, and that Ms Cody had deposed to sufficient facts to repudiate the execution of the loan documentation or instrument of charge, and the drawdown of the secured monies; (b) whether the trial judge was correct to refuse to adjourn the Bank’s application for possession to plenary hearing and whether he treated or was entitled to treat counsel’s election not to apply for a plenary hearing as conclusive of his jurisdiction; (c) allied to this, the point in the process where the jurisdiction of a court to adjourn summary possession proceedings to plenary hearing ceases; (d) whether the trial judge was correct to conclude that his refusal to make an order for possession on foot of the civil bill, meant by implication that the Bank be restricted from bringing further proceedings against the respondent pursuant to s. 62(7) of the Registration of Title Act 1964.

Held by Baker J that the arguments and evidence of Ms Cody were not sufficient to displace the prima facie evidence of the Bank that the right to seek possession by reason of default in payment of the money secured by the registered charge had arisen and become exercisable. However, Baker J found that Ms Cody did make more than generalised and bald general assertions and her affidavits were sufficient to entitle her to a trial of the action for possession on a plenary basis.

Baker J held that the appeal would for that reason be allowed. Baker J ordered that the action for possession proceed before the High Court by way of appeal under Part IV of the Courts Act 1936, and without any requirement that either party be required to seek special leave to adduce such evidence as they may deem appropriate at the hearing. Baker J held that the order restricting the right of the charge holder to commence further proceedings for possession against Ms Cody must as a consequence also be set aside.

Appeal allowed.

Judgment of Baker J. delivered the 14 ^th day of April 2021

1 . This appeal concerns the statutory provision for the grant of summary possession found in s. 62(7) of the Registration of Title Act 1964 (“the Act of 1964”). It is the appeal of Bank of Ireland Mortgage Bank (“the Bank”) of the order of Simons J. made on 28 February 2020, setting aside an order for possession of certain registered lands in County Wexford for the reasons set out in his written judgment delivered on 31 January 2020 ( [2020] IEHC 34).

2 . By ancillary order Simons J., for the reasons set out in his second written judgment delivered 28 February 2020 ( [2020] IEHC 99), refused the application of the Bank to remit the proceedings to plenary hearing, and gave the parties liberty to apply in the event that further proceedings for possession were taken against the second defendant pursuant to s. 62(7) of the Act of 1964.

3 . The first defendant, Mr. Cody, took no part in the action before the Circuit Court and has not engaged with this appeal. Ms. Cody therefore is the sole respondent.

4 . Briefly, the Bank sought possession pursuant to a charge registered against lands at Kilmurray, County Wexford comprised in Folio 25003F. The charge was created by instrument of 12 January 2007 to secure two loans said to have been granted on the conditions set out in letters of loan offers of September and October 2005, for the total amount of €650,000. On 21 December 2007 the charge was registered as a burden on the folio. The Bank is the owner of the charge. The lands are in joint names, the loans were said to have been advanced to Mr. and Ms. Cody jointly, and the charge has the appearance of being executed by both of them.

5 . The premises is the principal private residence of Ms. Cody, but was not at the time of the Circuit Court hearing the family home of the couple. It is part of Ms. Cody's case that at the material time her former husband did not reside there.

6 . A separate charge registered earlier on 20 June 2007 in favour of another Bank of Ireland entity is not in issue in these proceedings.

7 . The loans were called in on 10 June 2016, and on 28 June 2016 the Bank demanded possession. Thereafter proceedings were had in the Circuit Court and on 12 February 2019 the Circuit Judge made an order for possession with a stay of execution for 15 months. Simons J. was hearing the appeal from that Circuit Court order as a judge of the High Court on Circuit under Part IV of the Courts Act 1936, as amended.

8 . The proceedings in the Circuit Court under s. 62(7) were brought by civil bill grounded on affidavit, and Ms. Cody in her replying affidavits made allegations that the documentation on foot of which the loans were made and the charge created was executed without her knowledge or consent. The Bank argues that she did no more than make generalised assertions insufficient to establish a ground to refuse possession at a summary hearing.

9 . Simons J. dismissed the proceedings as he considered that the Bank had not proved the case on the facts, and thereafter in his second judgment declined to adjourn the summary proceedings for possession to plenary hearing in accordance with Order 5B, r. 8(2) of the Circuit Court Rules, on the grounds that he had no jurisdiction at that stage to adjourn the proceedings to plenary hearing, and that he had become functus officio.

10 . The Bank also appeals that part of the order by which Simons J. limited the entitlement of the charge holder to bring further proceedings for possession and argues that this part of his order was wrong in law and procedure.

11 . Ms. Cody was not represented before the High Court but she is now represented by solicitor and counsel, the leave to appeal being conditional upon the Bank being responsible for the reasonable costs of such representation.

The issues in the appeal

12 . The appeal raises a number of questions concerning the jurisdiction to grant summary judgment in possession cases, and while the appeal to this Court is from a decision of Simons J. sitting in the exercise of his statutory jurisdiction hearing an appeal from the Circuit Court, the principles to be considered will apply to proceedings in the Circuit Court, of which the appeal to the High Court was a de novo hearing.

13 . The issues in the appeal may conveniently be grouped as follows:

• (a) whether the trial judge was correct that the Bank had not established its claim, and that Ms. Cody had deposed to sufficient facts to repudiate the execution of the loan documentation or instrument of charge, and the drawdown of the secured monies;

• (b) whether the trial judge was correct to refuse to adjourn the Bank's application for possession to plenary hearing and whether he treated or was entitled to treat counsel's election not to apply for a plenary hearing as conclusive of his jurisdiction;

• (c) allied to this, the point in the process where the jurisdiction of a court to adjourn summary possession proceedings to plenary hearing ceases;

• (d) whether the trial judge was correct to conclude that his refusal to make an order for possession on foot of the civil bill, meant by implication that the Bank be restricted from bringing further proceedings against the respondent pursuant to s. 62(7) of the Act of 1964.

Section 62(7) Registration of Title Act: summary proceedings

14 . Section 62(7) of the Registration of Title Act 1964 makes provision for the summary disposal of an action seeking possession of registered land:

“When repayment of the principal money secured by the instrument of charge has become due, the registered owner of the charge or his personal representative may apply to the court in a summary manner for possession of the land or any part of the land, and on the application the court may, if it so thinks proper, order possession of the land or the said part thereof to be delivered to the applicant, and the applicant, upon obtaining possession of the land or the said part thereof, shall be deemed to be a mortgagee in possession.”

15 . The jurisdiction conferred by that section applies to proceedings for possession by the registered owner of a charge once monies secured by the charge have become due. The subsection does not identify what is meant by the making of an application “in a summary manner”, but the Court is given a discretion, if it so thinks proper, to order possession of the land to be delivered up, the consequence whereof is that the owner of the charge thereupon becomes a mortgagee in possession.

16 . In Bank of Ireland v. Smyth [1993] 2 IR 102, [1993] ILRM 790, Geoghegan J. rejected the notion that s. 62(7) confers a wide discretion which enables a court to refuse an application for possession on grounds of sympathy. He thought the words “may, if it so thinks proper” simply...