Promontoria (Oyster) Dac v Sean McHale
Jurisdiction | Ireland |
Judge | Mr Justice Maurice Collins |
Judgment Date | 26 March 2020 |
Neutral Citation | [2021] IECA 95 |
Court | Court of Appeal (Ireland) |
Docket Number | Court of Appeal Record No 2019/280 |
[2021] IECA 95
Costello J.
Collins J.
Binchy J.
Court of Appeal Record No 2019/280
THE COURT OF APPEAL
CIVIL
Declaratory relief – Sale of lands – Costs – Respondent seeking a declaration that monies alleged to be due and owing by him stood well charged on his interest in the lands – Whether the respondent was entitled to rely on the lien
Facts: The plaintiff/respondent, Promontoria (Oyster) DAC (Promontoria), by special summons dated 29 June 2018, brought proceedings against the defendant/appellant, Mr McHale, seeking a declaration that monies alleged to be due and owing by him – amounting, it was said, to €147,831.58 – stood well charged on his interest in the lands comprised in Folio 38240 County Mayo. An order for the sale of the lands was also sought, as well as other reliefs. The proceedings came on for hearing before Barton J in the High Court on 13 May 2019. The Judge concluded that it was appropriate to grant the reliefs sought, with costs. A stay was granted on the order for 28 days. Mr McHale appealed to the Court of Appeal. First, he re-iterated his complaint about the absence of any evidence about the original deposit of the land certificate and the registration of the lien on the Folio by Ulster Bank. Second, he made the point that the Folio merely “noted” the “interest” of Promontoria and that, he said, did not entitle Promontoria to rely on the lien. That was particularly so, Mr McHale said, where such “interest” was registered on 9 March 2017, “over 7 years after the cut off point and expiry date for the registration of such valid liens under the legislation”. Thirdly, Mr McHale questioned what proof there was, as of 9 March 2017, that the actual Equitable Deposit or even the actual Land Certificate on which the original lien was based still existed.
Held by Collins J that Promontoria was entitled to rely on the register to establish conclusively that it was the holder of a s. 73 lien registered as a burden on Folio 38240 (s. 73 of the Registration of Deeds and Title Act 2006). Collins J held that Promontoria was not required to lead evidence in respect of the deposit of the land certificate. Collins J held that the absence of such evidence was not a basis for refusal of the application. Collins J held that Promontoria was not required to put the land certificate into evidence or establish its continuing existence. Collins J held that the fact that the Folio simply “notes” the “interest” of Promontoria did not affect Promontoria’s entitlement to rely on it. Collins J held that Mr McHale had not demonstrated that the Judge erred in concluding as he did or in making the order that was made by him.
Collins J dismissed the appeal and affirmed the order made by the High Court. The Judge made an order for costs in favour of Promontoria and Collins J found that there was no basis for interfering with that order. As regards the costs of the appeal, Collins J held that Mr McHale should pay Promontoria’s costs. If Mr McHale wished to be heard on the terms of the order to be made by the Court (including as regards costs) Collins j held that he would have liberty to apply to the Court of Appeal Office within 21 days for a brief supplemental hearing.
Appeal dismissed.
JUDGMENT of Mr Justice Maurice Collins delivered on 26 March 2020
This appeal raises issues concerning the interpretation and effect of section 73 of the Registration of Deeds and Title Act 2006 (“ the 2006 Act”) and was heard with two other appeals raising similar issues, Promontoria (Oyster) DAC v Greene and Promontoria (Oyster) DAC v McKenna. The Court also gives judgment on those other appeals today. This judgment should be read with those judgments.
The material facts may be stated shortly. By special summons dated 29 June 2018 Promontoria (Oyster) DAC (“ Promontoria”) brought proceedings against Mr McHale seeking a declaration that monies alleged to be due and owing by him – amounting, it was said, to €147,831.58 – stood well charged on his interest in the lands comprised in Folio 38240 County Mayo. An order for the sale of the lands was also sought, as well as other reliefs to which it is not necessary to refer. 1
Mr McHale is the sole registered owner of the lands in Folio 38240. His family home is not on those lands.
As I noted in my judgment in Promontoria (Oyster) DAC v Greene, this form of action is familiar and long-established.
Promontoria's proceedings were grounded on an affidavit sworn by Albert Prendiville, one of its directors. Mr Prendiville stated that in 2012 Ulster Bank Ireland Limited (“ Ulster Bank”) had agreed to make credit facilities in the amount of €129,000 available to Mr McHale on the terms and conditions set out in a Letter of Offer dated 4 May 2012 to which Mr Prendiville refers and which is exhibited by him. Mr Prendiville states that pursuant to that offer letter Mr McKenna “agreed to provide a lien dated 22 December 2009 over the property described in the Schedule hereto as the security for the Loan Facility.” The Schedule referred to appears to be the Schedule to the Special Summons which refers to the lands in Folio 38240. Mr Prendiville goes on to explain that in December 2016 Ulster Bank had agreed to transfer to Promontoria a portfolio of loan facilities, including Mr McHale's facility and exhibits a (redacted) copy of the Deed of Transfer. Mr Prendiville goes on to explain that Mr McHale failed to make the required payments in accordance with the terms of the Letter of Offer. On 5 April 2018, Promontoria had issued a letter of demand but no payment had been made and, as of 12 June 2018, €147, 831.58 was due and owing.
The Letter of Loan Offer exhibited by Mr Prendiville (dated 4 May 2012) states, under the heading of security, “Lien dated 22/12/2009 over Land Cert Folio No 38240 Co Mayo comprising of 57 acres of farmland at Creevagh, Carrowmore Lackan, Ballina, Co Mayo.” Reference is also made to a life policy on the life of Mr McHale. The Letter of Loan Offer appears to have been signed by Mr McHale on 14 May 2012.
After referring to the Letter of Loan Offer, Mr Prendiville stated:
“I say that under and by virtue of deposit of equitable mortgage by the Defendant with the Plaintiff of Land Certificate for Folio 38240 of the Register of Freeholders for County Mayo, the lands and premises more particularly described in the Schedule contained in the Special Summons hereto, which equitable mortgage was registered as a lien in favour of the Bank pursuant to section 73(3) of the Registration of Deeds and Tile Act, 2006, on or about 22 December 2009 secured the payment of all monies due and owing by the Defendant to the Plaintiff in respect of the Letter of Loan Offer.”
Mr Prendiville also exhibits a copy of Folio 38240. It shows Mr McHale as the sole registered owner of the lands in the Folio. Part 3 of the Folio set out a number of burdens, including, at item 5b, a right of residence in favour of a named party which was registered on 16 May 1995. 2 Item 7 is a “Lien pursuant to Section 73(3) of the Registration of Deeds and Title Act 2006, in favour of” Ulster Bank. The date of registration is 22 December 2009. The entry is followed by a “ Note” to the effect that “ The interest of [Promontoria] is noted” by reference to an identified instrument dated 9 March 2017.
Mr McHale swore a number of affidavits. In his first affidavit (sworn on 23 October 2018, at which point the proceedings were still before the Master), he exhibited a letter sent by him to the solicitors acting for Promontoria in which he had requested copies/inspection of a various categories of documents “ by way of verification” of Promontoria's claim. The documents requested included certified copies of “ any and all documentation” regarding the registration of the lien in favour of Ulster Bank, as well as evidence of the registration of Promontoria as owner of the lien and “ any and all background legal documentation” as to how Promontoria came to be registered as owner. This material had not been provided to him. Mr McHale sought an adjournment to pursue his request as well as to clarify whether the loan was affected by what he referred to as “the ongoing Ulster Bank Overcharge of Interest Redress Scheme”. The affidavit refers to the fact that “ the debt being pursued in this instance previously was a primary debt held with Ulster Bank Ireland prior to the latter institution disposing of the debt to the present Plaintiff.” It does not otherwise engage in any way with the substance of Promontoria's claim.
Mr McHale swore a further affidavit on 12 December 2018, at which point an amended summons had been served. The affidavit stated that Mr McHale was fully defending the proceedings and disputing the reliefs sought but does not otherwise address the substance of the claim. The main thrust of the affidavit is to complain of Promontoria's refusal to provide Mr McHale with documentation proving the existence “of an equitable deposit of title deeds in the first instance.” Mr McHale helpfully identified the documents he was seeking as “ the...
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...5 Which also considered the related cases of Promontoria (Oyster) DAC v McKenna [2021] IECA 94 and Promontoria (Oyster) DAC v McHale [2021] IECA 95 6 See Tanager v Kane [2019] 1 IR 385 7 Paragraph 30 8 Paragraph 31 9 Also paragraph 31 10 Paragraph 48 11 Paragraph 39 12 A former Deputy Regis......