McGuinness v Property Registration Authority

• Jurisdiction: Ireland
• Judge: MR. JUSTICE MICHAEL PEART
• Judgment Date: 22 February 2019
• Neutral Citation: [2019] IECA 44
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 2017/283
• Date: 22 February 2019

[2019] IECA 44

THE COURT OF APPEAL

Peart J.

Peart J.

McGovern J.

Costello J.

Record Number: 2017/283

IN THE MATTER OF SECTION 19 (1) OF THE REGISTRATION OF TITLE ACT, 1964; AND IN THE MATTER OF RULE 159 (9) OF THE LAND REGISTRY RULES, 2012; AND IN THE MATTER OF ORDER 96 OF THE RULES OF THE SUPERIOR COURT; AND IN THE MATTER OF FOLIOS CN 31670F AND CN32247F

BETWEEN:

CHARLES McGUINNESS

APPLICANT/APPELLANT

- AND -

PROPERTY REGISTRATION AUTHORITY

FIRST NAMED RESPONDENT

- AND -

ANDREW MOORE

SECOND NAMED RESPONDENT

- AND -

VICTOR PICKENS

THIRD NAMED RESPONDENT

Instruments – Inspection – Bona fide purpose – Appellant seeking to inspect and obtain copies of instruments – Whether the appellant was entitled to inspect those instruments and/or be provided with certified copies thereof

Facts: The appellant, Mr McGuinness, appealed to the Court of Appeal against the order of the High Court (Abbott J) made on the 17th February 2017 refusing the appellant’s application brought by way of notice of motion dated 21st March, 2016 (as amended by order dated 17th February, 2017) wherein he had sought, inter alia, an order pursuant to s. 19 of the Registration of Title Act 1964 setting aside the refusal of the first respondent, the Property Registration Authority of Ireland, dated 9th March, 2016 to permit him to inspect and obtain a copy of Instrument Number D2013LR064719M and Instrument Number D2013LR053255M. The central question on appeal was whether the appellant was entitled to inspect those instruments and/or be provided with certified copies thereof.

Held by Peart J that the appellant needed to show that he had a bona fide purpose in having access to the instruments that he sought to inspect i.e. a genuine and legitimate interest, and that the onus was upon him, as an applicant under Rule 159(9) of the Land Registry Rules 2012, to inform the Property Registration Authority of Ireland in the first instance of what that purpose was so that it may properly satisfy itself that ‘special circumstances’ had been established. In Peart J’s view the appellant had failed to discharge the onus upon him as stated above.

Peart J held that he would dismiss the appellant’s appeal for that reason.

Appeal dismissed.

JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 22ND DAY OF FEBRUARY 2019

1 This is an appeal against the order of the High Court (Abbott J.) made on the 17th February 2017 refusing the appellant's application brought by way of notice of motion dated 21st March, 2016 (as amended by order dated 17th February, 2017) wherein he had sought, inter alia, an order pursuant to s.19 of the Registration of Title Act 1964 setting aside the refusal of the Property Registration Authority of Ireland dated 9th March, 2016 to permit him to inspect and obtain a copy of Instrument Number D2013LR064719M and Instrument Number D2013LR053255M.

2 As evidenced by the said letter, the reason for the refusal to permit him to inspect and obtain a copy of these instruments was that he is not the registered owner of the two folios upon which these instruments are registered, namely Folios CN31670F and CN32274F (‘the folios’). The instruments in question comprised transfers of the respective properties comprised in the folios by the registered owner of a charge on each folio pursuant to its power of sale.

3 By way of brief background, the appellant together with others had borrowed money from Ulster Bank Ireland Limited in 2006 for the purpose of assisting with the purchase of certain lands in Cavan. This loan was secured by way of deed of charge registered on the folios of which the appellant and those other parties were at that time the registered owners as tenants in common.

4 Following an event of default on the loan, the bank appointed a receiver over the secured lands. A challenge to the receiver's appointment was unsuccessful, and in due course the receiver sold the lands comprised in the folios to the second and third named respondents. That transfer of ownership is the subject of the two instruments registered on the folios in question which the appellant wishes to inspect and obtain copies. He does not know what consideration was paid by the purchasers, and an inspection of these instruments would provide him with that information.

5 In his first grounding affidavit the appellant states that he must have an entitlement to inspect and obtain copies of the instruments which deprived him of his ownership of his property ‘so that the process by which it was transferred is fair, open and transparent’ and so that he, being the affected person ‘can address any issues that might arise from such transfers, when I have all the details of the said transfers’. He went on to state that without being able to obtain copies of the instruments, and knowing exactly how, who and by what authority his property was transferred, he was unaware if he had any grounds for an action against any of the persons who transferred his property, and in the event that he brought any such action, the courts would not be in a position to effectively make a decision without knowing all the facts.

6 Ms. Pope, the Deputy Registrar of the Property Registration Authority of Ireland (‘the PRAI’) responded to the said grounding affidavit. In her replying affidavit she gave an account of the transactions by which the ownership of the relevant lands passed to the first and second named respondents on foot of transfers by Ulster Bank Ireland Limited, being the owners under its power of sale.

7 Ms. Pope went on to refer to other matters, such as the registration of a lis pendens on the said folios by the appellant and another party, and to the fact that the proceedings the subject of that lis pendens were dismissed. The lis in question was the challenge to the receiver's appointment already referred to. She also referred to the fact that she had received a letter from a solicitor acting on behalf of the appellant and another party in which the statutory basis upon which these transfers had been made by Ulster Bank Ireland Ltd was questioned, and that she had received a further letter from the appellant himself in which he advised that he had made a criminal complaint to An Garda Síochána in relation to these transfers by the bank.

8 Ms. Pope then refers to the appellant's two application to the PRAI in October 2015 to be permitted to inspect the two instruments referred to, and to the fact that those applications were referred to an Examiner of Titles for a ruling. She refers also to the fact that in the course of the referral to the Examiner of Titles, it had been noticed that ‘Mr McGuinness had been allowed to inspect both instruments at the public counter and that this had happened in error as he had in fact no entitlement under the Land Registry Rules to inspect the instruments by reason that he was not the registered owner of either of the folios in question at that juncture’.

9 In due course by letter dated 9th March 2016 the appellant was advised that the said instruments contained transfers by the registered owner of a charge acting under its power of sale, and that he was not entitled to inspect or be provided with copies of same ‘as he was not the registered owner of the lands to which each of the instruments related’. Ms. Pope avers that he was invited to withdraw his application; however, he replied by letter dated 15th March, 2016 indicating that he intended to appeal this decision under s.19 of the Registration of Title Act, 1964.

10 In her replying affidavit, Ms. Pope went on to state that, as could be seen from the appellant's correspondence, he did not cite any special circumstances that would bring his application within the scope of Rule 159 (9) of the Land Registry Rules 2012 and thereby permit inspection and copying of an instrument ‘by a person other than the registered owner of the lands to which the instrument relates’. She expressed her view that ‘the mere fact that Mr McGuinness was one of the previous registered owners of the properties in question does not constitute “special circumstances” within the meaning of Rule 159 (9)’.

11 In his second affidavit, the appellant takes issue with Ms. Pope's averment that he had been permitted to inspect these instruments when he had visited the PRAI office. In that regard he denies that he had been permitted to inspect the instruments but rather that he ‘was allowed inspect three documents each described at their heads as Form 25’. He expands upon the details of that visit and a subsequent visit on 10th November, 2015 when again, he inspected three documents headed Form 25 which he had inspected on his previous visit. He goes on to state that he then made two applications using Land Registry Form 96 for copies of the instruments in question under Rule 159 (9) on the grounds that he was one of the registered owners of the folios in question ‘when the application to transfer was lodged’.

12 In this second affidavit, the appellant refers to his visit to the PRAI office for the purpose of lodging a notice of motion and grounding affidavit seeking an order directing the PRAI to make certified copies of the instruments in question available to him. He states that in due course he was advised by a staff member that ‘she could not take the papers as my application was still pending and that the Property Registration Authority were still waiting for me to lodge special circumstances …’. This staff member, according to the appellant, advised him that Ms Finnegan, the author of the letter already referred to dated 9th March, 2016, had written to him seeking details of ‘special circumstances’, but the appellant informed the member of staff that he had not received any such letter. He refers to a further visit on 29th February, 2016 when he returned to the PRAI office in order to lodge his motion and grounding affidavit, and he states that on that...