Irish Bank Resolution Corporation v Hayes
| Jurisdiction | Ireland |
| Judge | Kearns P. |
| Judgment Date | 21 February 2014 |
| Neutral Citation | [2014] IEHC 70 |
| Court | High Court |
| Docket Number | [2012 No. 211 CA] |
| Date | 21 February 2014 |
[2014] IEHC 70
[2012 No. 211 CA]
THE HIGH COURT
Equity - Mortgage - Security over land - Loan - Order for possession of property - Repayments - Default - Land registry - Demand for repayment - Repeal of legislation - Registration of Title Act 1964 - Land Law and Conveyancing Law Reform Act 2009
Facts: These proceedings concerned an appeal of a decision of the Circuit Court dated the 20th September 2012, whereby an order for possession of the appellant” property was granted. The appellants had accepted from the respondent an offer of a loan on the condition that it would be repaid with interest at the rate of 4.85% per annum. The loan was secured on a property owned by the appellants with a deed of charge being entered into by the parties on the 25th March 2005. From March 2009, the appellants defaulted in meeting the scheduled repayments. By a letter of the 17 th November 2010, the respondent demanded either possession of the secured property or full repayment of the monies owed under the mortgage. The appellants failed to deliver either, which led to the respondent initiating proceedings to obtain possession of the secured property. On the 20th September 2012, an order for possession of the secured property was granted to the respondent in the Circuit Court.
An appeal of the Circuit Court decision was initiated. The respondent had brought the application on the basis of s.62 (7) of the Registration of Title Act 1964 (‘the 1964 Act’). That section had been repealed on the 1st December 2009 by s. 8 of the Land Law and Conveyancing Law Reform Act 2009, which had the effect of enacting new provisions that applied to mortgages created after the 1st December 2009. The appellants argued that since the respondent had not made a demand for the repayment of the entire principal and interest before the 1st December 2009, it was not entitled to rely on s. 62(7) of the 1964 Act.
Held by Kearns P. that the cases of EBS Limited v. Gillespie [2012] IEHC 243 and Ulster Bank v. Carroll (Unreported, High Court, O”Malley J., 16th July 2013) made it clear that a demand for repayment was not necessarily required to ensure monies became due but would depend to a large extent on the terms of the mortgage. It was noted that the appellant had averred that the present case was indistinguishable from the case of Start Mortgages Ltd. v. Gunn [2011] IEHC 275, where it was held that s. 62(7) of the 1964 Act could not be relied upon unless the principal amount secured under the relevant charge had become due prior to the 1st December 2009. However, it was determined that this conclusion was reached because the terms of the mortgage in that case necessitated a demand for repayment before the monies could become ‘due and payable’.
In regards to the mortgage in the instant case, paragraph C.7(c) made it clear that monies paid to the appellants would become repayable if they defaulted in making one repayment instalment and it remained unpaid after a period of one month. It was clear that the appellants had failed to meet a repayment instalment prior to the 1 st December 2009; therefore, the monies owed to the appellant became due and payable prior to the repeal of s. 62(7) the 1964 Act. As a result, it was held that the appellant had been entitled to seek an order for possession under that provision.
Appeal dismissed.
INTRODUCTION
This is an appeal from an order of the Circuit Court of the 20th September, 2012, whereby possession of the appellants” property was granted to the respondent.
FACTS
1.The deed of charge in this case was entered into by the parties on the 25th March, 2005. The property concerned is the lands hereditaments and premises of the appellants at Killaha, Kenmare, Co. Kerry, Registered Folio 33519F. The property was offered by way of charge to secure repayment to the respondent of the sum of £150,000 with interest at the rate of 4.85% per annum. The terms of the deed provided for monthly repayments of £799.50 per month for a term of 30 years. The respondent further provided the appellants with a loan offer of €65,000 with interest at the rate at 4.48% per annum for a term of 25 years. The terms of this loan provided for monthly repayments of €242.67. The respondent further provided the appellants with a loan offer of €240,000 with interest at the rate of 4.73% per annum for a period of 24 years. This provided for monthly repayments of €946.00. The loan offers were respectively accepted by the appellants on the 14th June, 2001, the 26th April, 2006, and the 17th October, 2006. The appellants have been in default of payments on foot of the mortgage since March, 2009. As of February, 2011, the appellants” mortgage account was in arrears in the sum of €36,273.36 with monthly repayments required in the sum of €2,418.45. By letter dated the 17th November, 2010, possession was demanded of the property and demand was made for payment of the sums due on foot of the mortgage. The appellants did not make payments in accordance with the terms of the loan facility and this default continued for more than one month after the initial failure.
HISTORY OF THE PROCEEDINGS
2.By Civil Bill returnable the 16th June, 2011, grounded on the Affidavit of Mr. John Larkin the respondent sought possession of the appellants” property for failure to make payments due and owing to the respondent. By order of the Circuit Court dated the 29th September, 2011, the respondent was changed from Irish Nationwide Building Society to Anglo Irish Bank and the matter was adjourned. By order of the Circuit Court dated the 20th September, 2012, an order for possession of the property the subject matter of this case was granted to the respondent. The appellant sought an extension of time to appeal the order of the Circuit Court made on the 20th September, 2012, granting possession to the respondent. By order of the Master of the High Court of the 22nd January, 2012, time was extended by three weeks to allow the appellants lodge their appeal.
RELEVANT LAW
3.Section 62(7) of the Registration of Title Act 1964 provided as follows:
‘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.’
4.This provision was repealed by s. 8 of the Land Law and Conveyancing Law Reform Act 2009. New provisions replacing it were included in that Act but they apply only to mortgages created after the 1st December, 2009.
5.Section 27 (1) Interpretation Act 2005 deals with the effect of repeals.
27.-(1) Where an enactment is repealed, the repeal does not
(a) revive anything not in force or not existing immediately before the repeal,
(b) affect the previous operation of the enactment or anything duly done or suffered under the enactment,
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the enactment,
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence against or contravention of the enactment which was committed before the repeal, or
(e) prejudice or affect any legal proceedings (civil or criminal) pending at the time of the repeal in...
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