GE Capital Woodchester Homeloans Ltd v Maureen Faulkner Madden and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 16 May 2013
• Neutral Citation: [2013] IEHC 540
• Court: High Court
• Date: 16 May 2013

GE Capital Woodchester Homeloans Ltd v Madden

BETWEEN

GE CAPITAL WOODCHESTER HOMELOANS LIMITED

PLAINTIFF

AND

MAUREEN FAULKNER MADDEN

DEFENDANT

GE CAPITAL WOODCHESTER HOMELOANS LIMITED

AND

DAVID DIGAN AND MARGARET DIGAN

DEFENDANTS

GE CAPITAL WOODCHESTER HOMELOANS LIMITED

AND

O'ROURKE AND KEARNEY

AND

GE CAPITAL WOODCHESTER HOMELOANS LIMITED

AND

TADHG BUCKLEY AND GERALDINE BUCKLEY

GE CAPITAL WOODCHESTER HOMELOANS LIMITED

AND

CIARAN HEALY

[2013] IEHC 540

[No. 878 S.P./2010]

[No. 493 S.P./2009]

[No. 809 S.P./2010]

[No. 418 S.P./2009]

THE HIGH COURT

REAL PROPERTY

Charge

Possession - Mortgage - Demand - Whether demand sufficient to render principal monies due - Whether offer to accept instalments or other alternative rendering demand equivocal - Stare decisis - Decision of court of equal jurisdiction - Test to be applied - Whether circumstances permitting departure from decision of court of equal jurisdiction - In re Worldport Ltd (In liquidation) [2005] IEHC 189, (Unrep, Clarke J, 16/6/2005) and GE Capital Woodchester Home Loans Ltd v Reade [2012] IEHC 459, (Unrep, Laffoy J, 12/11/2012) applied - Start Mortgages Ltd v Gunn [2011] IEHC 275, (Unrep, Dunne J, 25/7/2011); EBS Ltd v Gillespie [2012] IEHC 243, (Unrep, Laffoy J, 12/11/2012); In re a Company [1985] BCLC 37; Bank of Baroda v Panessar [1987] Ch 335; NRG Vision Ltd v Churchfield Leasing Ltd [1988] 4 BCLC 56; Wise Finance Co Ltd v Lanigan [2004] IESC 4, (Unrep, SC, 21/1/2004); Brady v DPP [2010] IEHC 231, (Unrep, Kearns P, 23/4/2010) and Irish Trust Bank Ltd v Central Bank of Ireland [1976- 77] ILRM 50 considered - Registration of Title Act 1964 (No 16), s 62 - Proceedings dismissed (2009/493SP, 2009/418SP, 2010/878SP & 2010/809SP - Dunne J - 16/5/2013) [2013] IEHC 540

GE Capital Woodchester Home Loans Ltd v Madden

A number of cases were listed for hearing in which the same issue arose for consideration. The plaintiff in each case was GE Capital Woodchester Homeloans Limited. In the course of proceedings, arguments were made on behalf of defendants Maureen Faulkner Madden, Ciaran Healy and Tadhg and Geraldine Buckley. Defendants David and Margaret Digan appeared in person. There was no appearance from defendants O”Rourke and Kearney. Each set of proceedings concerned an application for possession under section 62 (7) of the Registration of Title Act 1964 (the 1964 Act). The issue at the core of the proceedings concerned what constituted a demand for payment on foot of the relevant deed of charge. It was noted that where there was an absence of a demand, the right to bring proceedings under section 62 (7) of the 1964 Act did not arise.

The letter of demand in these cases was a standard form letter used by the plaintiff. The Court noted that the adequacy of that form of letter was considered by the High Court in a number of ex tempore judgments and a written High Court judgment in the case of Reade. In Reade, Laffoy J. concluded that the letter of demand relied on by the plaintiffs was not a sufficient demand to bring proceedings under section 62 (7)—a different conclusion to the ex tempore judgments.

Held by Dunne J., it was for the Court to consider the arguments in respect of the letter relied on by the plaintiffs and to determine whether it constituted a demand. It was also for the Court to consider whether it was appropriate to reach any conclusion on the issue, paying regard to the Reade judgment.

In reaching a decision, Dunne J. reviewed the principle of stare decisis and found that in order to depart from the judgment in Reade, the test that required satisfaction was that in Re. Worldport Ireland Limited. In that case, Clarke J. stated that departure from a decision was appropriate where it was apparent that the initial decision was not based on a review of relevant authority, where there was a clear error in the judgment, or where the judgment was sufficiently long ago that the relevant jurisprudence may have changed. As these conditions were not met in this application for possession, it was decided that it would be inappropriate for the Court to comment further on adequacy of the letters used by plaintiffs and whether the requirements of section 62 (7) were satisfied. This matter was held to have already been determined in Reade, which was based on the Supreme Court Judgment in Wise Company Limited v John Lanigan and thus binding .

The proceedings were therefore dismissed.

REGISTRATION OF TITLE ACT 1964 S62(7)

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

G E CAPITAL WOODCHESTER HOME LOANS LTD v READE UNREP LAFFOY 12.11.2012 2012/16/4580 2012 IEHC 459

EBS LTD v GILLESPIE UNREP LAFFOY 21.6.2012 2012/13/3829 2012 IEHC 243

A COMPANY, IN RE 1985 BCLC 37

COMPANIES ACT 1948 S223(A) (UK)

BANK OF BARODA v PANESSAR 1987 CH 335 1987 2 WLR 208 1986 3 AER 751

NRG VISION LTD & ORS v CHURCHFIELD LEASING LTD & ORS 1988 4 BCC 56 1988 BCLC 624

WISE FINANCE CO LTD v LANIGAN UNREP SUPREME 21.1.2004 2004/50/11582 2004 IESC 4

GE CAPITAL WOODCHESTER HOME LOANS LTD v ISLAM & SHAHNAZ UNREP DUNNE (EX TEMPORE)

WORLDPORT IRL LTD (IN LIQUIDATION), IN RE UNREP CLARKE 16.6.2005 2005/58/12287 2005 IEHC 189

BRADY v DPP UNREP KEARNS 23.4.2010 2010/5/1016 2010 IEHC 231

IRISH TRUST BANK LTD v CENTRAL BANK OF IRELAND 1976-7 ILRM 50

1 JUDGMENT of Ms. Justice Dunne delivered the 16th day of May 2013

2 A number of cases were listed for hearing before me in which the same issue has arisen for determination. The plaintiff in each case is the same and each set of proceedings relates to an application for possession pursuant to s. 62(7) of the Registration of Title Act 1964. (S. 62(7)). The issue at the heart of these proceedings concerns what constitutes a demand for payment on foot of the relevant deed of charge. In the absence of a demand, where required by the deed of charge, the right to bring proceedings under s. 62.7 does not arise. (See Start Mortgages and Others v. Gunn and Others [2011] IEHC 275). In the course of the hearing before me, arguments were made on behalf Ms. Faulkner Madden represented by Mr. Maguire S.C. who also represented the parties in the Buckley case. There was no appearance on behalf of the defendants in the O'Rourke case. Mr. Robinson B.L. appeared on behalf of Mr. Healy and Mr. and Mrs. Digan appeared in court in person. I indicated that, I would, if necessary, adjourn their case as they were not legally represented.

3 The issue as to the adequacy of the letter of demand in these cases relates to a standard form letter used by the plaintiff over a considerable period of time. The issue is complicated by the fact that the adequacy of that form of letter of demand was considered by the High Court in a number of ex tempore judgments (McGovern J. and Dunne J.) and further has been considered in a written judgment delivered in the High Court (Laffoy J.) in the case of GE Capital Woodchester Homeloans Limited v. Reade and Another (Unreported, High Court, 12 ^th November, 2012) in which Laffoy J. came to the conclusion that the letter of demand relied on by the plaintiff in those proceedings was not a sufficient demand to enable the plaintiff to bring proceedings under section 62(7). The considered decision in the Reade case reached a different conclusion to that given in the course of the ex tempore judgments referred to previously.

4 Accordingly, I propose to look at the arguments in respect of the letter relied on by the plaintiff in these proceedings and whether that letter constitutes a demand such that the plaintiff was entitled to bring proceedings pursuant to section 62(7). I also propose to consider the issue as to whether it is appropriate for this Court to reach any conclusion on this issue having regard to the decision of the High Court in the Reade case.

5 I will set out the relevant sections of two letters which featured in this case and which are relied on by the plaintiff. For ease of reference I will refer to those used in the case of Ms. Faulkner Madden, dated the 7 ^th February, 2009, and the 24 ^th August, 2009, respectively. The letters in every case are identical save for the obvious differences relating to the identity of the addressee and the amounts involved. In the first letter of the 7 February, 2009, it was stated as follows:-

"We refer to your mortgage account and note from our records that as at 7 February, 2009, your account is €6,140.06 plus charges of €57.91 in arrears. We must advise that unless you remit this sum in full within seven days from the date hereof we will have no alternative but to pass this account over to our solicitors to commence repossession proceedings as arising from your default under your mortgage agreement the entire balance outstanding has now fallen due which as at the 7 ^th February, 2009, amounted to €386,130.11."

6 The remainder of the letter went on to set details in relation to legal expenses.

7 The letter of the 24 ^th August, 2009 was written on behalf of the plaintiff by its solicitors in the following terms:-

"Dear Sir, Madam,"

8 We act on behalf of GE Capital Woodchester Homeloans Limited who instruct that you are in arrears on your mortgage accounts in the sum of €27,350.51 as at the 17 ^th day of August, 2009.

9 The purpose of this letter is to advise you that as a result of your above default in your mortgages, the entire balance outstanding on your mortgage accounts in the amount of €467,299.24 as at the 17 ^th day of August, 2009 has now fallen due and owing. We are instructed to demand within ten days from the date hereof vacant possession of our security the premise known as … for the purpose of sale as our client's power of sale has now arisen under the terms of your mortgages. However, if the arrears outstanding to our client are...