Gale v First National Building Society

• Jurisdiction: Ireland
• Judge: Mr. Justice Costello
• Judgment Date: 01 January 1987
• Neutral Citation: 1985 WJSC-HC 2161
• Docket Number: [1984 No. 7518P]
• Court: High Court
• Date: 01 January 1987

1985 WJSC-HC 2161

THE HIGH COURT

No. 7518P/1984

GALE v. FIRST NATIONAL BUILDING SOCIETY

BETWEEN/

JOHN GALE AND LAURA GALE

PLAINTIFFS

and

FIRST NATIONAL BUILDING SOCIETY

DEFENDANTS

Citations:

CONVEYANCING ACT 1891

NATIONAL BANK V HEGARTY 1 NIJR 13

NORTHERN BANKING CO LTD V DEVLIN 1924 1 IR 90, 58 ILTR 118

REGISTRATION OF TITLE ACT 1964

Synopsis:

REAL PROPERTY

Possession

Incumbrancer - Entitlement - Peaceable entry - Registered land - Charge created by registered owner - Deed of charge registered as burden - Charge securing repayment to chargeant of moneys advanced to owner - Contractual terms of advance - Express term permitting chargeant to enter into possession of land during continuance of security - Proviso precluding entry unless owner in default in repayments of advance - Default of owner - Departure of owner from registered land - Peaceable entry of chargeant into possession of land without court order - Possession of chargeant lawful (1984 No.7518P - Costello J. - 12/11/85).

|Gale v. First National Building Society|

1 Judgment of Mr. Justice Costellodelivered the 12th day of November, 1985.

2 Deed of charge on registered land. Entry into possession of lands by owner of the charge pursuant to its terms. Whether entry valid in the absence of a court order for possession.

3 The first-named Plaintiff is the registered owner of lands on which is built a house lived in by the first-named Plaintiff and his wife from early in the year 1973 until towards the end of 1982. The Defendants (a building society) are the owners of a registered charge on the lands which was created by a Deed of the 13th of July 1973. The Plaintiffs left Ireland in the month of October 1982 and were then (and subsequently) in arrears with the instalments due to the Defendants under the Deed. On the 1st of August 1984 the Defendants, claiming entitlement under the terms of the Deed, entered into possession of thePlaintiffs" house and advertised it for sale. The Plaintiffs, having learned of what had happened, instituted these proceedings and obtained an interim injunction. A motion for interloctory relief was then brought and by Orders of the 5th of November 1984 the motion was treated as the trial of the action and adjourned and issues were ordered to be tried as to

4 2 (a) whether the Defendants were lawfully entitled to take possession (in the absence of a court order) and, if so,

5 3 (b) had they taken possession peaceably.

6 These issues were heard on the Affidavit evidence which had been filed but Mr. Kilbride an auctioneer who had taken possession on the Defendants behalf was cross-examined as to the steps he had taken on the 1st of August. Having heard that evidence there is no doubt that possession was obtained peaceably by him on the Defendants behalf and the only matter, therefore, which is now in controversy is whether the Defendants were lawfully entitled to take possession as they did.

7 There is no doubt that the Defendants could have appliedin a summary way under the provisions of the Registration of Title Act 1964for an Order for possession and the Plaintiffs case is that in the absence...