McAteer & Bank of Ireland Mortgage Bank v Sheahan

JurisdictionIreland
JudgeMs. Justice Iseult O'Malley
Judgment Date13 September 2013
Neutral Citation[2013] IEHC 417
CourtHigh Court
Docket Number[2012 Nos. 4744 & 12130 P and 724 SP]
Date13 September 2013

[2013] IEHC 417

THE HIGH COURT

No. 4744P/2012
No. 12130P/2012
No. 724Sp/2012
McAteer & Bank of Ireland Mortgage Bank v Sheahan
Between/
MICHAEL MCATEER AND (By order of Laffoy J of 15 th November, 2012) BANK OF IRELAND MORTGAGE BANK
Plaintiffs
-and-
FRANK SHEAHAN (OTHERWISE FRANKIE SHEAHAN)
Defendant
FRANK SHEAHAN, JOSEPH SHEAHAN AND MyMORTGAGES LIMITED
THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND, BANK OF IRELAND MORTGAGE BANK AND MICHAEL MCATEER
BANK OF IRELAND MORTGAGE BANK
FRANK SHEAHAN

RSC O.34

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

LAND & CONVEYANCING LAW REFORM ACT 2009 S8

REGISTRATION OF TITLE ACT 1964 S62(7)

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

INTERPRETATION ACT 2005 S27

CONVEYANCING & LAW OF PROPERTY ACT 1881 S19(1)(iii)

LAND & CONVEYANCING LAW REFORM ACT 2009 S8(3)

LAND & CONVEYANCING LAW REFORM ACT 20092009 SCHED 2

REGISTRATION OF TITLE ACT 1964 S62(6)

LAND & CONVEYANCING LAW REFORM ACT 20092009 CHAP 10

LAND & CONVEYANCING LAW REFORM ACT 20092009 PART 3

REGISTRATION OF TITLE ACT 1964 S62

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

KADRI v GOVERNOR OF WHEATFIELD PRISON 2012 2 ILRM 392 2012/20/5671 2012 IESC 27

ULSTER BANK v ROCHE & BUTTIMER 2012 1 IR 765 2012/44/13004 2012 IEHC 166

INTERPRETATION ACT 2005 S27(1)(C)

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

INTERPRETATION ACT 2005 S27(1)

INTERPRETATION ACT 2005 S27(2)

BIRMINGHAM CITIZENS PERMANENT BUILDING SOCIETY v CAUNT 1962 CH 883 1962 2 WLR 323 1962 1 AER 163

ANGLO IRISH BANK CORP PLC v FANNING UNREP DUNNE 29.1.2009 2009/4/762 2009 IEHC 141

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

O'SULLIVAN v SUPERINTENDENT OF TOGHER GARDA STATION 2008 4 IR 212 2008/51/10849 2008 IEHC 78

DIRECTOR OF PUBLIC WORKS & ANOR v HO PO SANG & ORS 1961 AC 901 1961 3 WLR 39 1961 2 AER 721

CHIEF ADJUDICATION OFFICER & ANOR v MAGUIRE 1999 1 WLR 1778 1999 2 AER 859

BENNION & GOODALL BENNION ON STATUTORY INTERPRETATION 5ED 2008 309

KAVANAGH & LOWE v LYNCH & ST ANGELAS STUDENT RESIDENCES LTD UNREP LAFFOY 21.8.2011 2011/29/8022 2011 IEHC 348

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

MORAN v AIB MORTGAGE BANK & ORS UNREP MCGOVERN 27.7.2012 2012/29/8485 2012 IEHC 322

MCENERY v SHEAHAN UNREP FEENEY 30.7.2012 2012 IEHC 331

CONVEYANCING & LAW OF PROPERTY ACT 1881 S19

CONVEYANCING & LAW OF PROPERTY ACT 1881 S19(1)

JACKS, IN RE 1952 IR 159

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

ULSTER BANK IRL LTD v CARROLL UNREP O'MALLEY 16.7.2013 2013 IEHC 347

GE CAPITAL WOODCHESTER HOME LOANS LTD v READE UNREP LAFFOY 22.8.2012 2012/16/4552 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

ACC BANK v FAGAN (BANKRUPTS) UNREP FINLAY GEOGHEGAN 23.7.2013 2013 IEHC 346

REGISTRATION OF TITLE ACT 1964 S90

CAHILL v SUTTON 1980 IR 269

BOARD OF MANAGEMENT OF ST MALOGAS NATIONAL SCHOOL v SECRETARY GENERAL OF THE DEPARTMENT OF EDUCATION & ORS 2011 1 IR 362 2011 ILRM 389 2010/4/923 2010 IESC 57

WEST BROMICH BUILDING SOCIETY v WILKINSON 2005 1 WLR 2303 2005 4 AER 97

MERROW LTD v BANK OF SCOTLAND PLC & O'CONNOR UNREP GILLIGAN 22.3.2013 2013 IEHC 130

CONVEYANCING & LAW OF PROPERTY ACT 1881 S2

LAND LAW

Security

Special case stated - Mortgage - Right to apply for possession of property - Effect of repeal of s 62(7) of the Registration of Title Act 1964 - Stare decisis - Previous judgment determining effect of repeal of s 62(7) - Principles to be applied when departing from prior decision - Statutory interpretation - Whether departure from prior decision appropriate - Whether right to apply for statutory remedy under s 62(7) acquired - Receivers - Appointment - Repeal of statutory power to appoint receiver under s 19(1)(iii) of the Conveyancing Act 1881 - Whether power in contract to appoint receiver remaining extant - Whether power of receiver of rents and profits to take possession of property - Start Mortgages Limited v Gunn [2011] IEHC 275, (Unrep, Dunne J, 25/7/2011); EBS Ltd v Gillespie [2012] IEHC 243, (Unrep, Laffoy J, 21/6/2012); Kavanagh v Lynch [2011] IEHC 348, (Unrep, Laffoy J 31/8/2011) and Moran v AIB Mortgage Bank Ltd [2012] IEHC 322, (Unrep, McGovern J, 27/7/2012) approved - ACC Bank v Fagan [2013] IEHC 346, (Unrep, Finlay Geoghegan J, 23/7/2013); ACC Bank plc v Ruddy [2013] IEHC 138, (Unrep, Moriarty J, 5/3/2013); Anglo Irish Bank Corporation plc v Fanning [2009] IEHC 141, (Unrep, Dunne J, 29/1/2009); Bank of Ireland v Smyth [1993] 2 IR 102; [1993] ILRM 790; Bank of Ireland v Waldron [1944] IR 303; (1944) 78 ILTR 48; Re Belohn Ltd [2013] IEHC 130, [2013] 2 ILRM 388; Birmingham Citizens Permanent Building Society v Caunt [1962] Ch 883; [1962] 2 WLR 323; [1962] 1 All ER 163; Board of Mgt of St Molaga's NS v Department of Education [2010] IESC 57, [2011] 1 IR 362; Brady v Director of Public Prosecutions [2010] IEHC 231, (Unrep, Kearns P, 23/4/2010); Cahill v Sutton [1980] IR 269; Chief Adjudication Officer v Maguire [1999] 1 WLR 1778; [1999] 2 All ER 859; Director of Public Works v Ho Po Sang [1961] AC 901; Freeman v Bank of Scotland (Ireland) Limited [2013] IEHC 371, (Unrep, Gilligan J, 31/5/2013); GE Capital Woodchester Home Loans Limited v Madden [2013] IEHC 540, (Unrep, Dunne J, 16/5/2013); GE Capital Woodchester Home Loans Limited v Reade [2012] IEHC 363, (Unrep, Laffoy J, 22/8/2012); Hamilton Gell v White [1922] 2 KB 422; In re Howard's Will Trusts [1961] Ch 50; Re Industrial Services Co Ltd [2001] 2 IR 118; Irish Life and Permanent plc v Duff [2013] IEHC 43, (Unrep, Hogan J 31/1/2013); Irish Life and Permanent plc v Dunphy [2013] IEHC 235, (Unrep, Hogan J, 29/4/2013); Irish Trust Bank v Central Bank of Ireland [1976-7] ILRM 50; In re Jacks [1952] IR 159; Kadri v Gov Wheatfield Prison [2012] IESC 27, [2012] 2 ILRM 392; McDonald v Bord na gCon [1965] IR 217; McEnery v Sheahan [2012] IEHC 331, (Unrep, Feeney J, 30/7/2012); Northern Banking Co v Devlin [1924] 1 IR 90; O'Sullivan v Superintendent in charge of Togher Garda Station [2008] IEHC 78, [2008] 4 IR 212; Police Authority for Huddersfield v Watson [1947] KB 842; Simple Imports Ltd v Revenue Commissioners [2000] 2 IR 243; Ulster Bank Ireland Limited v Carroll [2013] IEHC 347, (Unrep, O'Malley J, 16/7/2013); Ulster Bank (Ireland) Ltd v Roche [2012] IEHC 166, [2012] 1 IR 765; West Bromwich BS v Wilkinson [2005] UKHL 44, [2005] 1 WLR 2303 and Re Worldport Ireland Ltd (In liquidation) [2005] IEHC 189, (Unrep, Clarke J, 16/6/2005); [2008] IESC 68, [2009] 1 IR 398 considered - Rules of the Superior Courts 1986 (SI 15/1986), Ords 34 and 60 - Conveyancing Act 1881 (44 & 45 Vict, c 41) - Registration of Title Act 1964 (No 16), ss 62 and 90 - Interpretation Act 2005 (No 23), s 27 - Land and Conveyancing Law Reform Act, 2009 (No 27), ss 8 and 97, Ch 10, Part 3, Sch 2 - Questions answered (2012/4744P, 12130P, and 724 SP - O'Malley J - 13/9/2013) [2013] IEHC 417

McAteer v Sheahan

Facts A problem arose owing to the repeal of section 62 (7) of the Registration of Title Act, 1964 by the coming into force of the Land and Conveyancing Law Reform Act, 2009. The provision was re-enacted in the 2009 Act but the new provision applied only to mortgages created after the commencement of the 2009 Act. There was no express transitional provision to cover the lacuna. The problem was identified in the case of Start Mortgages v. Gunn. In this instance there was a dispute as to the appointment of a receiver after the mortgage had fallen into arrears. The borrowers challenged the appointment of the receiver and that if the receiver was validly appointed he nonetheless had no power to take possession.

Held by O"Malley J in making the following order: The bank parties had not discharged the burden of persuading the court that it should depart from the decision in Gunn. The appointment of the receiver was lawful by virtue of the contractual entitlement of the bank. Where a receiver of rents and profits, with a power to let and manage, was properly appointed with due regard to any formal requirements, it was implicit that he had a power to take possession in order to carry out his functions. It might appear strange that the law distinguished between the availability of the right to apply for possession and the rights of lenders to appoint receivers. A change in the legislation would not, in general, directly affect the terms of the contract. However, the repeal of section 62(7) had undoubtedly affected the right to seek that particular remedy and thereby indirectly impacted upon the legal context in which the contract was created in a significant way.

Introduction
1

This is a special case, stating, pursuant to the provisions of Order 34 of the Rules of the Superior Courts, certain questions of law arising out of the three sets of proceedings named above for the opinion of the court thereon.

2

The questions of law arise from the lacuna identified in the judgment of Dunne J in Start Mortgages v. Gunn (hereafter "Gunn"), relating to the powers of mortgagees or chargeholders after the coming into force of the Land and Conveyancing Law Reform Act, 2009 on the 1 st December, 2009. Section 8 of that Act had the effect of repealing, inter alia, s.62 (7) of the Registration of Title Act, 1964 (hereafter "s.62(7)"). The provision was re-enacted in the Act but the new provision applies only to mortgages created after the commencement of the 2009 Act. There is no express transitional provision.

3

In brief, Gunn decided that by virtue of the repeal...

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7 cases
  • Harrington v Gulland Property Finance Ltd
    • Ireland
    • High Court
    • 29 Julio 2016
    ...whatsoever on the validity of the appointment of the Receiver.' 16 A similar view is taken by O'Malley J. in McAteer & Ors. v. Sheahan [2013] IEHC 417, [2013] 2 I.R. 328 which dealt extensively with the provisions of the Act of 1964 and the consequences of the repeal of the statutory powe......
  • McGarry v O'Brien
    • Ireland
    • High Court
    • 12 Diciembre 2017
    ...the question of the receiver's powers had not been definitive determined. With regard to the defendant's reliance on McAteer v. Sheahan [2013] 2 I.R. 328, the plaintiffs submit that O'Malley J.'s conclusions only apply to receivers who have been given the power to let and manage the releva......
  • McAteer and Another v Sheahan
    • Ireland
    • High Court
    • 19 Junio 2015
    ...Reform Act, 2009. One of the issues in the special case, in which I gave judgment on the 13th September, 2013 ( McAteer & anor v Sheahan [2013] IEHC 417), was whether the bank had an entitlement to seek possession under the repealed provisions of the Registration of Title Act, 1964. That is......
  • Woods v Ulster Bank ireland
    • Ireland
    • High Court
    • 21 Febrero 2017
    ...of Kavanagh & Anor. v. McLaughlin [2015] IESC 27, [2016] 2 I.L.R.M. 44, and the decision of O'Malley J. in McAteer & Anor. v. Sheahan. [2013] IEHC 417, [2013] 2 I.R. 328. 28 Mc Dermott J. also said that the power to appoint a receiver crystallised at the date of the execution of the mortga......
  • Request a trial to view additional results

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