Bank of Ireland v Smyth

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 26 March 1993
• Neutral Citation: 1993 WJSC-HC 1522
• Docket Number: No. 609 Sp./1988,[1988 No. 609 Sp.]
• Court: High Court
• Date: 26 March 1993

BANK OF IRELAND v. SMYTH

BETWEEN

THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND

PLAINTIFF

AND

MICHAEL JOSEPH SMYTH AND BY ORDER UNA SMYTH

DEFENDANTS

1993 WJSC-HC 1522

No. 609 Sp./1988

THE HIGH COURT

Synopsis:

REAL PROPERTY

Incumbrance

Registered land - Chargeant - Possession - Claim - Family home - Charge executed by defendant husband affecting property including family home - Consent to charge executed by defendant wife - Validity of wife's consent contested - Duty of chargeant to explain transaction and to advise wife to obtain independent legal advice - Registration of Title Act, 1964, s. 62 - Family Home Protection Act, 1976, s. 3 - (1988/609 Sp - Geoghegan J. - 26/3/93)- [1993] 2 I.R. 102 - [1993] ILRM 790

|Bank of Ireland v. Smyth|

Citations:

REGISTRATION OF TITLE ACT 1964 S62(7)

RSC O.9 r9

REGISTRATION OF TITLE ACT 1964 S81

RSC O.9 r14

BANK OF IRELAND V HANRAHAN UNREP O'HANLON 10.2.87 1987/1/88

FIRST NATIONAL BUILDING SOCIETY V RING 1992 1 IR 375

PARTITION ACT 1868 S4

FAMILY HOME PROTECTION ACT 1976 S3

FAMILY HOME PROTECTION ACT 1976 S3(3)(a)

FAMILY HOME PROTECTION ACT S3(6)

SOMERS V W 1979 IR 94

BARKLAYS BANK V O'BRIEN 1992 4 AER 983

NORTHERN BANKING CO LTD V DEVLIN 1924 1 IR 90

GLOVER REGISTRATION OF LAND IN IRELAND 1933

REGISTRATION OF TITLE ACT 1942 S13

FAMILY HOME PROTECTION ACT 1976 S3(5)

FAMILY HOME PROTECTION ACT 1976 S1

CONVEYANCING ACT 1881

REGISTRATION OF TITLE ACT 1891

1 Judgment of Mr. Justice Geoghegan delivered the 26th day of March 1993.

2 This is a claim for possession by the Plaintiff of the house and lands comprised in numbers 1, 2 and 3 of Folio 9173F of the Register of Freeholders, County Tipperary, pursuant to Section 62(7) of the Registration of Title Act 1964.The Plaintiff is registered as owner of a Charge purported to have been created by Instrument of Charge. The first named Defendant is the registered owner of the property and the second named Defendant is his wife.

3 The Defendants between them have defended this Action on a number of quite separate grounds of defence. Three of these grounds were rejected by this Court when they were raised on an application for a non-suit at the end of the Plaintiff's case. The first was that there was non-compliance with Order 9, Rule 9 of the Rules of the Superior Courts in that at the time the proceedings were instituted the first named Defendant's mother was allegedly in possession or in receipt of rents and profits within the meaning of the Rule because she enjoyed a right of residence and a right of support charged on the property. I ruled against the first named Defendant on the grounds that:-

4 (a) Having regard to Section 81 of the Registration of Title Act, 1964,the mother's right of residence was a lien for money's worth. The entitlement to that right or to the right of support did not constitute her a person in possession or in receipt of rents and profits within the meaning of the Rule. As to whether a county Registrer executing an Order for Possession could require the mother, if she were still alive, to vacate is quite another matter and did not fall to be determined in this Action.

5 (b) The mother is, at any rate, now dead. I took the view that even if the mother ought to have been served with the Summons under the Rules, I should not dismiss the Action for failure to do so, but on the contrary should dispense with the requirement having regard to the fact that she is now deceased. If and insofar as service on the mother was required therefore I dispensed with that requirement.

6 The second ground of application for non-suit was a related ground. It was submitted that the Action ought to be dismissed or struck out for failure to comply with Order 9, Rule 14 of the Rules of the Superior Courts. I considered that having regard to paragraph 10 of the first affidavit of Mr. David Dowley, Manager of the relevant branch of the Plaintiff bank, there was sufficient compliance with the Rule. I also took the view that even if there was not strict compliance nobody was prejudiced and that it would be wrong to non-suit the Plaintiff on this account.

7 The third ground of application for non-suit was that the evidence seemed to indicate that the Consent of the second named Defendant to the Charge under the Family Home Protection Act, 1976was signed after the Instrument of Charge had been signed by the first named Defendant. However, when on my request Mr. Dowley, the Manager at the time of the transaction was recalled, he stated that he could not really remember which document was signed first but that he was satisfied he would have complied with the guidelines which had come from headquarters and which had been put in evidence. I refused the non-suit on the grounds that this defence had not been pleaded. Before doing so, I indicated that I would favourably entertain an application for an adjournment by the second named Defendant to amend her defence, provided that her Counsel could assure me that her client would be testifying that she signed the Consent after the husband signed the Charge. The invitation was not taken up. Even if the absence of prior consent had been pleaded, I would take the view that, as a matter of reasonable inference from the evidence, the Instrument of Charge could not have been treated as having been unconditionally signed, sealed and delivered by the first named Defendant prior to the signature of his wife on the form of Consent under the Family Home Protection Act, 1976.Pending the wife's signature, the Deed of Charge would have been considered as signed and sealed but not yet delivered or alternatively delivered as an escrow. This view is in line with the judgment of Mr. Justice O'Hanlon in Bank of Ireland v. Hanrahan delivered 10th February 1987 where in the analagous situation of an Equitable Mortgage by deposit of title deeds, the Learned Judge decided that even though the document had been handed to the bank prior to the signing of the Spouse's Consent, the mortgage was valid as not having been intended to take effect until the Consent was signed.

8 Following on the refusal of the non-suit the only witness who gave evidence was the second named Defendant. At the close of the Defendants" case two substantive grounds of defence were argued. The first was that the Consent of the second named Defendant was not a true Consent in that she was not advised to obtain independent legal advice and that she did not have a proper understanding of what she was signing. It was submitted that the Charge was void, both because on the evidence the plea of non est factum in relation to the Consent had been sustained and because in signing the Consent, the second named Defendant was allegedly entering into a improvident transaction without the benefit of independent legal advice and without a proper understanding of the transaction involved.

9 The second substantive ground of defence was based on the judgment of Mrs. Justice Denham in First National Building Society v. Ring 1992 1 I.R. 375, a case involving the exercise of discretion under Section 4 of the Partition Act, 1868. By analogy with Denham J.'s interpretation of the Section in the Partition Act, it has been argued that upon the wording of Section 62(7) of the Registration of Title Act, 1964, I have a discretion as to whether I order possession in this case or not. I will now discuss each of these substantive defences separately.

10 To determine the Consent issue it is necessary to analyse carefully the provisions of Section 3 of the Family Home Protection Act, 1976.Section 3, subject to four statutory exceptions, renders void a purported conveyance by a spouse of any interest in the family home, unless either there is a prior Consent in writing by the other spouse or a Court Order dispensing with such Consent. Of the four statutory exceptions, the only one which would be relevant to this case is the exception under...