McGuiness v The Property Registration Authority

• Jurisdiction: Ireland
• Judge: Mr. Justice Murray
• Judgment Date: 05 February 2021
• Neutral Citation: [2021] IECA 25
• Date: 05 February 2021
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record No. 2020/67

BETWEEN:

CHARLES MCGUINNESS

APPELLANT

- AND -

THE PROPERTY REGISTRATION AUTHORITY OF IRELAND AND ULSTER BANK IRELAND DESIGNATED ACTIVITY COMPANY

RESPONDENTS

[2021] IECA 25

Costello J.

Donnelly J.

Murray J.

Court of Appeal Record No. 2020/67

High Court Record No. 2019/16

THE COURT OF APPEAL

JUDGMENT of Mr. Justice Murray delivered on the 5 ^th day of February 2021

1 This is an appeal against the refusal by the High Court of Mr. McGuinness' application for orders directing the first named respondent (‘the PRAI’) to cancel entries of judgment mortgages registered on the application of the second named respondent (‘the Bank’) on six folios in Counties Monaghan, Cavan and Mayo. That application was made on three grounds. The first was that the deponent of the affidavit on the basis of which registration was effected did not come within the categories of persons authorised by law to swear such an affidavit. The second was that that person had failed to sufficiently evidence his authority to do so and/or that he had no such authority. The third was to the effect that only a person registered with the Companies Registration Office in accordance with the provisions of the European Communities ( Companies) Regulations 1973 could swear such an affidavit. O'Regan J. rejected each of these arguments. It is my view that she was correct in doing so.

2 The background can be shortly stated. On November 1 2010 judgment was granted by the High Court in favour of the Bank and against Mr. McGuinness in the sum of €12,000,000. On November 22 of that year, judgment was granted in the same set of proceedings against Mr. McGuinness in the sum of €1,651,948. On December 20 2010 the first judgment was registered as a judgment mortgage on five folios - three in County Cavan and two in County Monaghan. On 18 April 2011 both judgments were registered as judgment mortgages on a folio of the Register County Mayo.

3 Registration was effected on foot of affidavits sworn by a Ted Mahon on the 11 November 2010 and the 24 March 2011. In both affidavits, he described himself as follows:

‘ I, Ted Mahon, aged 18 years and upwards, of Ulster Bank Ireland Limited having its registered office at Ulster Bank Group Centre, George's Quay, Dublin 2, the creditor within the meaning of Section 115 of the Land and Conveyancing Law Reform Act 2009, make oath and say as follows:-‘

4 On 9 February 2015, Mr. McGuinness made an application to the PRAI under Rule 113 of the Land Registration Rules 2012 (‘the 2012 Rules’) for the cancellation of these judgment mortgages from each Folio by reason of invalidity. In an accompanying letter, the applicant expressed the view that Mr. Mahon was not a ‘ creditor’ within the meaning of s. 115 of the Land and Conveyancing Law Reform Act 2009 (‘the 2009 Act). On July 1 2015, an employee of the PRAI advised the applicant that he had a letter from Gartlan Furey on behalf of the Bank objecting to the applicant's request and recording its view of the legal position. The letter from the PRAI of that date advised Mr. McGuinness of, and summarised, the Bank's stance (although it did not forward the letter from Gartlan Furey). On July 21 2015 the applicant replied setting out his response.

5 Then, on 30 January 2019 the applicant was sent a copy of an affidavit sworn by a Michael McNaughton on 4 September 2015. In that affidavit, Mr. McNaughton stated that Mr. Mahon was authorised by the Bank to swear the affidavits used in the application to register the judgment mortgage. That affidavit described Mr. McNaughton as a director of the Bank, a description which the applicant has disputed. The PRAI said in its letter of January 30, the following:

‘ The Authority notes that a dispute has arisen in that there is a clear conflict between the averments of the applicant and those of the judgment creditor. It is not the function of the Authority to decide between the merits of the claims of both parties and the judgment mortgages will only be cancelled with the consent of the judgment creditor or on foot of a Court Order.

‘ In these circumstances the Authority is not satisfied that the applicant is entitled to the registration sought and the application may have to be refused. Such a refusal could then be appealed to Court pursuant to Section 19(1) of the Registration of Title Act 1964’.

6 After Mr. McGuinness (by letter dated 9 March 2019) indicated that he did not wish to withdraw his application and that he sought a formal refusal from PRAI, the latter issued a ruling on 12 April 2019 rejecting his application. The stated basis for the decision was as follows:

‘ due to conflicts between the said applicant and averments made by Michael McNaughton, the Property Registration Authority is not satisfied that the applicant has established his right to the registration sought’.

7 This appeal against that decision was brought pursuant to s. 19(1) of the Registration of Title Act 1964 (‘the 1964 Act’) and was initiated by notice of motion on 9 July 2019. Section 19(1) states that any person aggrieved by an order or decision of the Registrar may appeal to the court and the court may annul or confirm, with or without modification, the order or decision. The application was grounded on an affidavit of Mr. McGuinness in which he exhibited the relevant correspondence, and inter alia recorded his contention that Mr. Mahon was not a ‘ creditor’ of the applicant within the meaning of s. 115, that there was no evidence to prove that he was an authorised agent of the Bank or that he was registered with the Companies Registration Office as ‘ a registered person with authority to bind a company’. In consequence, he said, PRAI should not have refused his application but should have referred the matter to the Court.

8 An affidavit having been delivered in reply by John O'Shea of the PRAI which, essentially, outlined the relevant chronology and explained the decision of PRAI by reference to the relevant legislation and affidavit of Mr. McNaughton, Mr. McGuinness concluded the exchange of evidence with a short replying affidavit sworn on 24 October 2019. There, he questioned Mr. O'Shea's authority and means of knowledge, dismissed some of his averments as hearsay, and tendered evidence from a hearing before the High Court in other proceedings where the Bank acknowledged that Mr. McNaughton was not a director of the Bank. The exhibited transcript records counsel for the Bank as saying of Mr. McNaughton:

‘ Director unfortunately is an employment - related term within the bank, so I'm not in a position to say he's a director in the corporate sense or the company law sense’

9 Section 116(1) of the 2009 Act provides as follows:

‘ A creditor who has obtained a judgment against a person may apply to the Property Registration Authority to register a judgment mortgage against that person's estate or interest in land’.

10 The term ‘ creditor’ as used in this provision is defined in s. 115(a) as follows:

‘“creditor” includes –

An authorised agent and any person authorised by the court to register a judgment mortgage on behalf of a judgement creditor’

11 Mr. McGuinness' arguments were simple and were presented by him with clarity and by reference to an impressive array of legal authority. He starts with the relationship between the 2009 Act and the provisions of the Judgment Mortgages ( Ireland) Act 1858 (‘the 1858 Act’), contending that ss. 115 and 116 of the former should be interpreted as having the same essential effect as s. 3 of the latter. Because (he says) the requirements imposed by the 1858 Act were not complied with in the affidavit used to ground the application to register the judgment mortgages in issue here, he contends that the registration is invalid.

12 Section 3 of the 1858 Act included the following:

‘ the word “creditor” shall mean and include … all joint-stock banking and other companies and corporate bodies; and every affidavit or oath necessary to be made by any creditor may be made by … the public officer authorized to sue or be sued or to make oaths on behalf of such joint-stock company, or by the secretary, deputy secretary or law agent of any corporate body ….’

13 Clearly, the effect of the 1858 Act was that in respect of a company and absent an authorised public officer or Court order (for which provision was made later in s. 3) the affidavit by which it was sought to have registered a judgment mortgage could be sworn by the secretary, deputy secretary or law agent of that entity. As Mr. Mahon occupied none of these positions, the applicant says, he was not permitted by law to swear the affidavit used to that end by the Bank, and the registration is thus invalid.

14 In support of his claim that these requirements were carried over into the 2009 Act, Mr. McGuinness relies upon comments in Wylie ‘ The Land and Conveyancing Law Reform Acts: Annotations and Commentary’ (2 ^nd Ed. 2017). There (at p. 323) Professor Wylie states that s. 115 of the 2009 Act ‘ re-enacts provisions in ss. 3 and 4 of the Judgment Mortgages ( Ireland) Act 1858’ further stating ( id.) that s. 115(a):

‘ retains the existing law previously in the 1858 Act that a judgment mortgage can be registered by an agent or other person authorised by the court’.

15 Mr. McGuinness further refers to Wylie ‘ Irish Land Law’ (5 ^th Ed. 2013) where (at para. 15.09) the authors say:

‘ The general rule is that the affidavit relating to the judgment had to be sworn by the judgment creditor and this still applies to the new application forms for registration …. Where more than one creditor obtains the judgment, any one of them may swear the affidavit or application form. If the judgment creditor is a company it may be made by its secretary or law agent. This is a long-established practice and in O'Connor and Son Ltd. v. Whelan it was held by Denham J. that the absence of a ‘means of...