Irish Life and Permanent Plc v Dylan Dunphy

JurisdictionIreland
JudgeMr. Justice Hogan
Judgment Date29 April 2013
Neutral Citation[2013] IEHC 235
CourtHigh Court
Date29 April 2013

[2013] IEHC 235

THE HIGH COURT

[No. 58CA/2012]
Irish Life & Permanent PLC v Dunphy

BETWEEN

IRISH LIFE AND PERMANENT PLC
PLAINTIFF

AND

DYLAN DUNPHY
DEFENDANT

REGISTRATION OF TITLE ACT 1964 S62(7)

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

LAND & CONVEYANCING LAW REFORM ACT 2009 S8(3)

LAND & CONVEYANCING LAW REFORM ACT 2009 SCHED 2

LAND & CONVEYANCING LAW REFORM ACT 2009 PART V

IRISH LIFE & PERMANENT PLC v DUFF UNREP HOGAN 31.1.2013 2013 IEHC 43

INTERPRETATION ACT 2005 S27

REGISTRATION OF TITLE ACT 1964 S62(6)

LOCAL REGISTRATION OF TITLE (IRL) ACT 1891 S40

NORTHERN BANK CO LTD v DEVLIN 1924 1 IR 90 1924 58 ILTR 118

LOCAL REGISTRATION OF TITLE (IRL) ACT 1891 S40(4)

CONVEYANCING & LAW OF PROPERTY ACT 1881 S7(1)(C)

CONVEYANCING & LAW OF PROPERTY ACT 1881 S19

GLOVER A TREATISE ON THE REGISTRATION OF OWNERSHIP OF LAND IN IRELAND 1933 165

LOCAL REGISTRATION OF TITLE (IRL) ACT 1891 S40(2)

REGISTRATION OF TITLE ACT 1964 S62(2)

REGISTRATION OF TITLE ACT 1964 S62

BANK OF IRELAND v SMYTH 1993 2 IR 102 1993 ILRM 790 1993/6/1522

KAVANAGH & LOWE v LYNCH & ST ANGELAS STUDENT RESIDENCES LTD UNREP LAFFOY 31.8.2011 2011/29/8022 2011 IEHC 348

MCENERY v SHEAHAN UNREP FEENEY 30.7.2012 2012 IEHC 331

CONVEYANCING & LAW OF PROPERTY ACT 1881 S19(1)

LAND & CONVEYANCING LAW REFORM ACT 2009 S8

MEAGHER v LUKE J HEALY PHARMACY LTD 2010 3 IR 743 2010/33/8352 2010 IESC 40

REGISTRATION OF TITLE ACT 1942 S13

COURTS OF JUSTICE ACT 1936 S37(1)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S48

COURTS OF JUSTICE ACT 1936 S38(1)

COURTS OF JUSTICE ACT 1936 S38(2)

COURTS OF JUSTICE ACT 1936 S38(3)

COURTS OF JUSTICE ACT 1936 S38

COURTS OF JUSTICE ACT 1936 S37

H WIGODER & CO LTD v MORAN & LEOPOLD 1977 IR 112

Practice and procedure - Property law - Possession - Agreement - Oral evidence - Interpretation Act 2005

Facts: The plaintiff bank sought possession of a mortgaged property. The defendant had defaulted on repayments and the Circuit Court had granted an order for possession. The Court considered whether the Bank had a vested right of possession prior to 1 December 2009 for the purposes of the Interpretation Act 2005, whether the Court could grant possession pursuant to a contractual agreement and whether the Court could state a case for opinion from the Supreme Court, given that the jurisdictional ports had never been directly considered.

Held by Hogan J. in stating questions to the Supreme Court, as to whether the High Court had jurisdiction to state a case in hearing an appeal from the Circuit Court where there was no oral evidence? Whether ILP had a vested right of possession prior to 1 December 2009 for the purposes of the Act of 2005 and whether the Court could grant possession to a mortgagee of registered land pursuant to a contractual agreement.

1

JUDGMENT of Mr. Justice Hogan delivered on 29th April, 2013

2

1. Section 62(7) of the Registration of Title Act 1964 ("the 1964 Act") was a key statutory provision which enabled mortgagees to recover possession of registered land where the principal sum had come due. The repeal of this sub-section with regard to mortgages of registered land created prior to 1 st December 2009 has presented difficult and unusual issues with regard to the respective rights of mortgagors and mortgagees, as can be seen with a series of decisions, commencing with the leading judgment of Dunne J. in Start Mortgages Ltd. v. Gunne [2011] IEHC 275.

3

2. In these ejectment proceedings the plaintiff bank ("ILP") seeks possession of mortgaged property at 57 Marian Park, Buncrana, Co. Donegal and comprising Folio No. 13364F of the County of Donegal by reason of (admitted) default by the defendant in respect of the mortgage debt. It is important to state immediately that the defendant, Mr. Dunphy, has never lived in the property which has instead been let. While this property is not a family home, it should be recorded that Mr. Dunphy was a first time buyer and that this is his only property.

4

3. The present case accordingly raises once again, however, the question of the entitlement of a credit institution to recover possession in ejectment proceedings following the repeal with effect from 1 st December, 2009, of the Registration of Title Act 1964 ("the 1964 Act") by s. 8(3) and Schedule 2, Part 5 of the Land Law and Conveyancing Law Reform Act 2009 ("the 2009 Act") and the decision in Gunne. As will presently be see, many of these issues also arose in the judgment which I delivered in Irish Life and Permanent plc v. Duff [2013] IEHC 43 and in this present appeal I am here required to re-examine some of the conclusions which I reached on these legal issues in that case.

5

4. It is not in dispute but that the defendant has defaulted on repayments due on foot of an indenture of mortgage which was issued on 3 rd January, 2008, for the sum of €235,000. By 12 th October, 2010, the arrears had reached the sum of €26,417 and they have doubtless escalated in the interval. On 1 st February, 2011, the Circuit Court (His Honour Judge O'Hagan) granted an order for possession. The defendant now appeals to this Court against the decision.

6

5. In essence, the principal questions before me are whether:-

7

(i) whether the Bank had a vested right to possession prior to 1 st December, 2009, for the purposes of s. 27 of the Interpretation Act 2005 ("the 2005 Act"), which was unaffected by the subsequent repeal of s. 62(7)?;

8

(ii) even if the answer to that question is in the negative, whether this Court can grant possession pursuant to a contractual agreement which is independent of statute?

9

(iii) what is the relevance (if any) of the Central Bank's Code of Conduct for Mortgage Arrears for the present case?

10

(iv) can and should this Court state a case-for the opinion of the Supreme Court?

11

6. I should record here that I am a mortgage customer of ILP and I notified the parties of this fact. Both parties expressly waived any objection to my hearing the case on that account and in light of that express waiver, I agreed to hear the case.

12

7. In the course of the hearing, counsel for ILP, Mr. Gallagher S.C., objected to the issue of the Code of Conduct being raised. He noted that it had not been raised in the Circuit Court, nor did it arise at any stage on the pleadings and he submitted that it was simply too late for the defendant to raise at this point in an appeal before me. In these circumstances, I ruled that the defendant could not belatedly invoke this issue.

Whether the Bank had a vested right to possession prior to 1 st December 2009 for the purposes of s. 27 of the Interpretation Act 2005
13

8. The mortgage itself was created on 3 rd January 2008 and it seems to have quickly fallen in to arrears. On November 4, 2008 the collections department of ILP wrote to Mr. Dunphy to advise that the arrears had now reached €5,286.85. The letter-writer continued by adding:

"As a result of the arrears stated above and the terms of your mortgage, the Bank is now entitled to possession of the mortgaged property. Accordingly, unless the above mentioned arrears are discharged within 21 days of today's date or, alternatively, vacant possession of the above premises is given to the Bank within 21 days, we will issue proceedings without further notice against you for a Court order for the recovery of possession of the premises so that the property may be sold…"

14

9. This letter which was written was in identical terms to that which was at issue in Duff a point to which I will presently return. A similar letter was written by ILP's solicitors on 15 th December 2008 requesting that Mr. Dunphy discharge the arrears on the mortgage "failing which proceedings shall continue and further legal costs shall accrue to the mortgage account."

15

10. Mr. Dunphy then responded by letter dated 17 th December, 2008, to say that he was entitled to a €8,000 first time buyer's allowance from the Revenue Commissioner which, once received, would restore the account to credit. ILP responded on 8 th January, 2009, saying that, strictly without prejudice to its right to take proceedings, it would hold off taking action for another twelve weeks.

16

11. Mr. Dylan then wrote on 1 st April, 2009, to say that the repayment had been delayed due to confusion in respect of the relevant forms from the Revenue Commissioners. He added that if ILP could:

"place the outstanding balance on the capital and switch my account to interest only, I will be in a position to start making repayments."

17

12. ILP then responded by letter dated 27 th April, 2009, noting that, despite assurances to the contrary, no payment had been made since the previous December, 2008 and that it was necessary for Mr. Dunphy to pay the sum of at least €329 per week. It does not appear that any further payments were made by Mr. Dunphy and there was no further meaningful exchange of correspondence between them. ILP's solicitors wrote to the defendant on 16 th June 2010 at the time of the commencement of the proceedings to inform him that the proceedings had been commenced and that the arrears were then just under €20,000.

18

13. The terms and conditions of the mortgage deed are in substance identical in the present case with that in Duff. Clause 7.1 provides:

"The total debt shall become immediately payable to permanent tsb: "

1. If the mortgagor defaults in the making of two monthly repayments or for two months in the payment of any other moneys payable under the mortgage."

19

14. In the present case, since there had been default on the part of the mortgagor, there is no doubt but that in principle the total sum became due by reason of such default. A similar situation had also arisen in Duff where I stated:

"It is, of course, true that...

To continue reading

Request your trial
2 cases
  • Irish Life and Permanent Plc v Dunne
    • Ireland
    • Supreme Court
    • 15 May 2015
    ...lender with the code affected that lender's ability to obtain an order for possession. In the case stated in the second proceedings (see [2013] IEHC 235), the High Court raised the question as to whether the plaintiff had a vested right to possession in respect of the defendant's land prior......
  • McAteer & Bank of Ireland Mortgage Bank v Sheahan
    • Ireland
    • High Court
    • 13 September 2013
    ...2012 IEHC 363 ACC BANK PLC v RUDDY UNREP MORIARTY 5.3.2013 2013 IEHC 138 IRISH LIFE & PERMANENT PLC v DUNPHY UNREP HOGAN 29.4.2013 2013 IEHC 235 IRISH TRUST BANK LTD v CENTRAL BANK OF IRELAND 1976-7 ILRM 50 FREEMAN v BANK OF SCOTLAND (IRL) LTD & ORS UNREP GILLIGAN 31.5.2013 2013 IEHC 371 AC......
1 firm's commentaries
  • Legal Issues in Irish Residential Mortgages, September 2013
    • Ireland
    • Mondaq Ireland
    • 24 September 2013
    ...repossession proceedings in respect of primary residences, it is worth noting that in the case of Irish Life and Permanent plc v Dunphy [2013] IEHC 235 (where the property was not a family home, but was the only residential property in the State owned by the defendant) the question of wheth......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT