O'Riordan v SLGI (Holdings) Plc

• Jurisdiction: Ireland
• Judge: Mr. Justice Alexander Owens
• Judgment Date: 11 April 2019
• Neutral Citation: [2019] IEHC 247
• Docket Number: Record No. 2018/6394P
• Court: High Court
• Date: 11 April 2019

Between:

Brian O'Riordan

and

Michael O'Shea

Plaintiffs

And

SLGI (Holdings) plc, ADT Limited, American District Telegraph Services International Limited

and

the Property Registration Authority

Defendants

[2019] IEHC 247

Record No. 2018/6394P

THE HIGH COURT

Preliminary issue – Registration – Jurisdiction – Plaintiffs seeking trial of a preliminary issue – Whether the High Court had jurisdiction to make an order setting aside the registration of the first defendant as registered owner of Folio 220572F of the Register, County Dublin

Facts: The plaintiffs, Mr O’Riordan and Mr O’Shea, applied to the High Court for trial of a preliminary issue in a notice of motion dated 12th December 2018. The issue before Owens J was whether matters deposed to establish that the plaintiffs were entitled to an order cancelling the registration of the first defendant, SLGI (Holdings) plc, as full owner with absolute title of Folio 220572F County Dublin. That registration was made on foot of Dealing D2017LR131291W and took effect on 15th November 2017.

Held by Owens J that he had jurisdiction to make an order setting aside the registration of the first defendant as registered owner of Folio 220572F of the Register, County Dublin. Owens J noted that s. 31(1) of the Registration of Title Act 1964 recognises the existence of the jurisdiction of the High Court to make orders of this sort, where a first registration or any registration has resulted from “actual fraud or mistake”.

Owens J held that there would be an order that the register of freeholders be rectified by the elimination of the registration of Folio DN220572F, which was the subject matter of Dealing number D2017LR131291W and that the registration of the first defendant as full owner of the lands described in that Folio be set aside.

Judgment approved.

JUDGMENT of Mr. Justice Alexander Owens delivered on the 11th day of April 2019.

1 The plaintiff has applied for trial of a preliminary issue in a notice of motion dated 12th December 2018. It is agreed between the parties that the hearing of this application can be treated as a hearing of the issue and that for this purpose, I can have regard to the elements in the affidavits filed which establish undisputed facts.

2 The action relates to an office block known as ‘ ADT House’ which is located at 113 Phibsborough Road, Dublin 3. This unit is just south west of Cross Guns Bridge at the Royal Canal and it was formerly part of the Ranks City Mill. The plaintiffs acquired the freehold and intermediate titles by a conveyance dated 31st August 1993, Park Avenue Estates Limited -to- Michael O'Shea and Brian O'Riordan, subject to and with the benefit of a 35-year lease dated 4th September 1987 in favour of the second defendant, ADT Limited.

3 At the end of March 2018, Mr. O'Shea and Mr. O'Riordan asked ADT why it had not paid the rent. They were told that the first defendant had succeeded in becoming registered in the Land Registry as owner of the property and that ADT had surrendered the lease and vacated possession. ADT had paid the first defendant to get out of the lease and it may be inferred that the first defendant used the registration to represent that it had acquired the superior interest in order to negotiate the surrender and get this payment. The Folio shows the 1997 lease as a registered burden on the superior freehold interest.

4 It has long been recognised that the registration of deeds system does not enable searching which allows precise identification of lands described in the memorials to deeds. The old index of lands never functioned properly and the index of names searches and memorials of deeds often do not identify with precision the location of the lands assured in the acts which turn up on searches. It is difficult to avoid the conclusion that somewhere in this case fraudsters identified this weakness in the system and interposed a fake deed and a false title with a superficial plausibility.

5 ADT House now appears in the file plan referred to in Part 1 (A) of Folio 220572F County Dublin.

6 The issue before me is whether the matters deposed to establish that the plaintiff is entitled to an order cancelling the registration of the first defendant as full owner with absolute title of Folio 220572F County Dublin. This registration was made on foot of Dealing D2017LR131291W and took effect on 15th November 2017.

7 Since 1st June 2011, the compulsory registration provisions of section 24 of the Registration of Title Act 1964, as amended, have applied to conveyances and assignments on sale of freehold and leasehold unregistered land in Dublin. Where sales were completed after that date it became necessary to apply for first registration in any case where an application for first registration could have been made on a voluntary basis previously.

8 Where unregistered land is bought, the solicitor for the purchaser investigates the title to that land prior to completion and nowadays prior to the contract of sale. Title is shown by the vendor and is deduced from an acceptable root of title. Copies of the deeds and other documents to vouch that title are produced by the vendor's solicitor for inspection by the purchaser's solicitor.

9 Applicants for first registration of a property following a sale where the purchase money does not exceed €1,000.000.00, may avail of the Form 3 procedure set out in Rule 19 (3) of the Land Registration Rules 2012. This permits the Property Registration Authority to register without itself carrying out any investigation of the title, in reliance on the certificate of a solicitor as embodied in that form. I refer to the content of Form 3 as set out in the Rules. The solicitor certifies that the title is in order.

10 The solicitor who acts for the purchaser in a sale will usually process the purchaser's application for first registration. That solicitor will have fully investigated the title. If the title is in order that solicitor should be in a position to give the certificate in Form 3, which must be based on title deduced from a root of title set out in Rule 19 (1). This Rule specifies that the title must be deduced from a conveyance for value made more than 15 years prior to the date of the application and the solicitor who signs the Form 3...