KBC Bank Ireland Plc v Woods

• Jurisdiction: Ireland
• Judge: Mr. Justice Eagar
• Judgment Date: 13 March 2017
• Neutral Citation: [2017] IEHC 164
• Docket Number: [2015 177 C.A.]
• Court: High Court
• Date: 13 March 2017

[2017] IEHC 164

THE HIGH COURT

Eagar J.

[2015 177 C.A.]

BETWEEN

KBC BANK IRELAND PLC.

PLAINTIFF/RESPONDENT

AND

KEVIN WOODS

DEFENDANT/APPELLANT

Banking & Finance – Central Bank Act 1971 –Order for possession – Appeal – Transfer of mortgage

Facts: The defendant had filed against the order of the Circuit Court for granting possession of certain folio to the plaintiff. The plaintiff contended that it was entitled to exercise power of sale pursuant to the Central Bank Act 1971 as the defendant's mortgage was transferred from the bank in the name of the plaintiff by virtue of S.I. 125 of 2009. The defendant argued that under s. 62 (2) of the Registration of Title Act 1964, the instrument would not confer any interest in charge to the plaintiff unless the plaintiff was the registered owner of that charge.

Mr. Justice Eagar dismissed the appeal and held that the plaintiff was entitled to exercise its power of sale pursuant to the relevant clause in the mortgage. The Court held that under s. 35 and s. 36 of the Act of 1971, a formal registration of the charge was not required.

JUDGMENT of Mr. Justice Eagar delivered on the 13th day of March, 2017

1 This is an appeal from the defendant/appellant against an order of Judge Flanagan in Roscommon Circuit Court granting the plaintiff/respondent possession from the defendant of the premises forming part of folio 25535F in County Roscommon, as described in the schedule of the deed of transfer dated June 2007 and made between Michael Woods and Kevin Woods. The premises are situated at Corey, Kilmore, Carrick on Shannon, Co. Roscommon and are now wholly comprised in folio 34177F of the Register of Free-Holders in the County of Roscommon.

2 The pertinent legal issues involve whether the interest of IIB Homeloans Ltd. was registered as a charge on the mortgage transferred to KBC Bank Ireland plc.

Submissions of Plaintiff/Respondent

3 It seems common case that IIB Homeloans Ltd. advanced to the defendant the sum of €284,000.00 on the 5th January, 2007 and duly registered the mortgage in the Land Registry on the 3rd February, 2009. It is also not in dispute that the defendant has, since the 1st November, 2011, periodically defaulted in the payment of monies to be paid to the plaintiff (the Bank/IIB Homeloans Ltd.) and subsequently to the plaintiff. The plaintiff is now seeking to exercise its power of sale pursuant to S.I. 125 of 2009. The plaintiff encloses an approval by the Minister for Finance on the 26th February 2009 to the transfer of the mortgage from KBC Mortgage Bank to KBC Bank Ireland plc.

4 The S.I. 125 of 2009 cites as follows:-

‘ Central Bank Act 1971 (approval of scheme of KBC Mortgage Bank and KBC Bank Ireland Plc.) Order 2009 whereas:

‘(a) KBC Mortgage Bank (in the following Order referred to as the ‘Transferor’) is a private unlimited company with a share capital incorporated in Ireland under the Companies Acts 1963 to 2006 (no. 129761) on 4 March 1988 under the name Ayrsome Limited. On 31 January 1989, it changed its name to Irish Life Homeloans Limited. On 6 December 1999, it changed its name to IIB Homeloans Limited. On 24 October 2008, it changed its name to KBC Mortgage Bank. The Transferor carries on a banking business in Ireland from its registered office at Sandwith Street, Dublin 2 and is the holder of a licence in relation thereto granted on 24 October 2008 under Section 9 of the Central Bank Act 1971.

(b) KBC Bank Ireland plc. (in the following Order referred to as the ‘Transferee’) is a public limited company incorporated in Ireland under the Companies Acts 1963 to 2006 (no. 40537) on 14 February 1973 under the name Irish Inter-Continental Holdings Limited. On 25 April 1973, it changed its name to Irish Intercontinental Bank Limited. On 10 January 2000, it changed its name to IIB Bank Limited. On 29 March 2006, it re-registered as a public limited company under the name IIB Bank plc. On 24 October 2008, it changed its name to KBC Bank Ireland plc. The Transferee carries on a banking business in Ireland from its registered office at Sandwith Street, Dublin 2 and is the holder of a licence in relation thereto granted on 17 May 1973 under Section 9 of the Central Bank Act 1971.

AND WHEREAS on 26 February 2009 the Transferor and the Transferee submitted to the Minister for Finance for his approval the Scheme for transfer (in the following Order as referred to as the ‘Scheme’) made by the Transferor and the Transferee on 26 February 2009.

NOW I, BRIAN LENIHAN, Minister for Finance after consultation with the Central Bank and Financial Services Authority of Ireland and, in respect of Articles 4 to 10 of this Order, at the request of the Transferor and Transferee, hereby, in exercise of the powers conferred on me by section 33 of the Central Bank Act 1971 (No. 24 of 1971), order as follows:

[The relevant portions of the Scheme are contained in paragraph 8(1) which states:-]

(1) Subject to para. (2), on the transfer date –

(a)...