GE Capital Woodchester Home Loans Ltd v Reade and Another (No 2)

• Jurisdiction: Ireland
• Judge: Ms. Justice Laffoy
• Judgment Date: 12 November 2012
• Neutral Citation: [2012] IEHC 459
• Court: High Court
• Date: 12 November 2012

G E Capital Woodchester Home Loans Ltd v Reade

BETWEEN

G E CAPITAL WOODCHESTER HOME LOANS LIMITED

PLAINTIFF

AND

JOHN READE AND DYMPNA READE

DEFENDANTS

[2012] IEHC 459

[No. 237 SP/2010]

THE HIGH COURT

REAL PROPERTY

Possession

Application for possession - Application for findings made in judgment to be revisited - Findings made in relation to inadequacy of letter of demand - Submission that similar letters of demand accepted by other judges - Submission that plaintiff deprived of opportunity to address issue as issue not raised by defendant - Onus of proof on applicant for possession - Necessity of demand to render unpaid monies due and payable - Start Mortgages Ltd v Gunn [2011] IEHC 275, (Unrep, Dunne J, 25/7/2011) and The Wise Finance Co Ltd v John Lanigan (Unrep, SC, 21/1/2004) considered - Registration of Title Act 1964 (No 16), s 62 - Claim dismissed (2012/237SP - Laffoy J - 12/11/2012) [2012] IEHC 459

GE Capital Woodchester Home Loans Ltd v Reade

Facts An order of possession had already been sought against the defendants which had been refused [judgment Laffoy J. 22/08/12, [2012] IEHC 363. The plaintiff asked the court to revisit the findings made in relation to the letters of demand. The court had previously held there had been no demand for repayment of the entire balance. The plaintiff”s contention was that similar letters of demand had passed muster before the Judges in the Chancery Special Summons List. In addition it was submitted that the second defendant had not raised any issues as to the adequacy of the letters of demand.

Held by Laffoy J in dismissing the plaintiff”s claim: The court still had jurisdiction in the matter as no order had been perfected yet, the onus of proof on an application for possession under s. 62(7) of the Registration of Title Act 1964 was on the plaintiff. As per the judgment in The Wise Finance Co. Ltd. v. John Lanigan [Supreme Ct. 21/01/04] a demand was necessary following an event of default. The precedent letter demanded the arrears due and threatened the commencement of possession proceedings in the event of the defendants failing to pay up. However no demand had been made for the entire balance outstanding and therefore the court had no jurisdiction under s. 62(7) of the Registration of Title Act, 1964 to grant possession.

GE CAPITAL WOODCHESTER HOME LOANS LTD v READE & ORS UNREP LAFFOY 22.8.2012 2012 IEHC 363

REGISTRATION OF TITLE ACT 1964 S62(7)

WISE FINANCE CO LTD v LANIGAN UNREP SUPREME 21.1.2004 2004/50/11582

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

1 Judgment of Ms. Justice Laffoy delivered on 12th day of November, 2012.

2 1. The purpose of this judgment is to address an issue which has been raised by the plaintiff arising out of the judgment I delivered in this matter on 22 ^nd August, 2012 [2012] IEHC 363 (the Judgment). I have been asked by the plaintiff to revisit the findings made in paragraphs 17 and 18 of the Judgment in relation to letters which were relied on by the plaintiff as letters of demand. The relevant passages from the Judgment are as follows:

3 2 "17. … As regards the letter of 2 ^nd February, 2010, once again, the defendants were told that they were in arrears on their mortgage and the amount of the arrears was specified. It was then stated that the result of the default was that the entire balance outstanding, the amount of which was specified, as at the date of the letter, had fallen due and owing. However, there was no demand for repayment of the entire balance; there was merely an assumption that it was due and owing. The demand was for vacant possession of the Property within ten days. On the basis of the analysis of those two letters, it must be concluded that the evidence does not establish that repayment of the principal money had become due prior to the initiation of these proceedings, because of the absence of the demand for the entire balance as required by Clause 3.02.

4 18. As I have stated earlier, the plaintiff's reliance on the letter of 10 ^th April, 2007 was to avoid the implications of the decision in Start Mortgages Ltd. & Ors. v. Gunn & Ors. However, even if a letter in the form of the precedent was dispatched to the defendants on 10 ^th April, 2007, the letter, like the letters of 21 ^st December, 2009 and 2 ^nd February, 2010, would not have embodied a demand. It would merely have indicated that, if the arrears were not remitted in full within seven days, the plaintiff would have no alternative but to embark on proceedings for possession. In short, even if it had issued, a letter in the form of the precedent would not have constituted a demand for all the monies remaining unpaid by the defendants to the plaintiff as required by Clause 3.02 of the Charge and would not have fulfilled the requirement of s. 62(7) that the principal money secured by the Charge had become due."

5 2. The plaintiff's contention is that similar letters of demand have passed muster before the Judges in the Chancery Special Summons List. The plaintiff also makes the point that, as the second defendant who appeared on the hearing of the special summons did not raise any issue as to the adequacy of those letters as demands, the Court, in making adverse findings in relation to the wording of the demands, has been in breach of fair procedures and the principles of natural justice, insofar as the plaintiff was never given the opportunity to be heard on the issue and deal with the same. While I have considered it appropriate to consider the submissions made on behalf of the plaintiff, as I still have jurisdiction in the matter because no order has been perfected, it is important that it is understood that the onus of proof on an application for possession under s. 62(7) of the Registration of Title Act 1964 is on the plaintiff. As was pointed out in the judgment at paragraph 15:

"Under that provision two requirements had to be complied before the Court could make an order for possession: the principal money had to have become due; and the applicant had to be registered as the owner of the Charge on the relevant folio. If both requirements were fulfilled, the Court was empowered to make an order for possession if it considered it 'proper' to do so."

6 The second defendant did not object to the Court revisiting the issue and, indeed, her counsel gave full co-operation on the resumed hearing.

7 3. However, as I pointed out in paragraph 3 of the judgment, the first named defendant has never entered an appearance in the proceedings and did not appear on the hearing. Therefore, it was incumbent on the Court to ensure that the plaintiff was entitled to an order for possession under s. 62(7).

8 4. Counsel for the second defendant referred the Court to a decision of the Supreme Court delivered by Fennelly...