Start Mortgages Ltd v Gunn and Others
Jurisdiction | Ireland |
Judge | Ms. Justice Dunne |
Judgment Date | 25 July 2011 |
Neutral Citation | [2011] IEHC 275 |
Court | High Court |
Date | 25 July 2011 |
BETWEEN
AND
AND
AND
AND
AND
AND
AND
[2011] IEHC 275
THE HIGH COURT
JUDGMENT of Ms. Justice Dunne delivered the 25th day of July 2011
An issue has arisen in a number of cases in which it is sought to recover possession of registered land pursuant to the provisions of s. 62(7) of the Registration of Title Act 1964. The issue arising for consideration in these cases relates to the consequences of the repeal of s. 62(7) of the Registration of Title Act 1964 ("s. 62 (7)") by virtue of the provisions of the Land and Conveyancing Law Reform Act 2009 ("the 2009 Act"). Three cases were listed for hearing on this issue on the 22 nd June, 2011 and as the issue raised in each case is the same, albeit that there are some differences in the facts and circumstances of each case, it was convenient to hear the cases at the same time and it is likewise convenient to deliver one judgment in respect of the three cases. A further case was listed for mention on that date but it was not possible to hear at that stage and that case which raised the same issue was subsequently heard on the 14 th July, 2011. Insofar as that case refers to the same issue in respect of s. 62(7) it is likewise convenient to deal with that case in the course of this judgment.
I propose in the course this judgment to refer in each case to the security held by the plaintiffs as "the mortgage" or the "the charge". Different terms are described in the various cases for the security document but for ease of reference, I will use those terms interchangeably.
I now propose to set out specific details in respect of each case.
The mortgage in this case was entered into on the 21 st September, 2007. The property concerned is the family home of the defendants. The loan sought by the defendants was €210,000 and a loan in the amount of €209,264 was offered. This was accepted by the defendants on the 21 st September, 2007. The loan was advanced on the 28 th September, 2007. The charge created by the mortgage was registered in the Land Registry on the 20 th May, 2008. The defendants have been in default of payments on foot of the mortgage since July 2008. By letter dated the 14 th September, 2009, possession was demanded of the property and demand was made of the sums due on foot of the mortgage.
The mortgage in this case was entered into on the 16 th October, 2008. The property concerned is not the family home of the defendants. The loan in this case was offered in the sum of €100,000 for a term of one year, the terms of which included certain charges so that the actual amount advanced was €93,000. The charge was registered in the Land Registry on the 28 th October, 2008. The defendants defaulted in making payments in accordance with the terms of the commitment letter and mortgage. Demand for vacant possession and payment of the amount due was made on the 13 th July, 2010. (A number o other issues were raised by way of defence in these proceedings but for the purpose of this judgment I am solely considering the effect of the repeal of section 62(7).)
The mortgage in this case was entered into on the 27 th March, 2008. The property concerned is not a family home. The loan was for a total sum of €320,000 of which €295,000 was advanced on the 27 th March, 2008. A further sum of €25,000 agreed to be provided by way of loan was not drawn down. The charge was registered in the Land Registry on the 29 th September, 2008. The account went into default almost immediately and demand was made by letter on the 16 th March, 2009, for vacant possession and payment of the arrears. There were further demands made on the 9 th April, 2009 and the 5 th July, 2010.
As mentioned previously the submissions in this case were made on a later date. The mortgage in this case was entered into on the 20 th December, 2006. The sum advanced was €399,500. The charge was registered on the 21 st December, 2006. The account went into default in November 2008 and demand for payment and vacant possession was made by letter dated the 19 th January, 2010. The property is the family home of the defendants.
I first want to refer to the provisions of s. 62 of the Registration of Title Act 1964, which are to the following effect:
2 "62(1) A registered owner of land may, subject to the provisions of this Act, charge the land with the payment of money either with or without interest, and either by way of annuity or otherwise, and the owner of the charge shall be registered as such.
(2) There shall be executed on the creation of a charge, otherwise than by will, an instrument of charge in the prescribed form (or an instrument in such other form as may appear to the Registrar to be sufficient to charge the land, provided that such instrument shall expressly charge or reserve out of the land the payment of the money secured) but, until the owner of the charge is registered as such, the instrument shall not confer on the owner of the charge any interest in the land.
…
(6) On registration of the owner of a charge on land for the repayment of any principal sum of money with or without interest, the instrument of charge shall operate as a mortgage by deed within the meaning of the Conveyancing Acts, and the registered owner of the charge shall, for the purpose of enforcing his charge, have all the rights and powers of a mortgagee under a mortgage by deed, including the power to sell the estate or interest which is subject to the charge.
(7) When repayment of the principal money secured by the instrument of charge has become due, the registered owner of the charge or his personal representative may apply to the court in a summary manner for possession of the land or any part of the land, and on the application the court may, if it so thinks proper, order possession of the land or the said part thereof to be delivered to the applicant, and the applicant, upon obtaining possession of the land or the said part thereof, shall be deemed to be a mortgagee in possession.
…"
I also wish to refer to certain provisions of the Land and Conveyancing Law Reform Act 2009. Section 8 of that Act provides for amendments and repeals and those amendments and repeals are set out in Schedule 1 of the Act. Part 5 of Schedule 1 refers to Acts of the Oireachtas and sets out the name of the Act concerned together with the extent of the repeal. Accordingly, the effect of s. 8 of the 2009 Act is that s. 62(7) of the Registration of Title Act 1964 has been repealed. By virtue of SI. No. 356/2009 the day on which the Land and Conveyancing and Law Reform Act 2009 (other than s. 132) came into operation was the 1 st December 2009.
It is also necessary to have regard to certain provisions of the Interpretation Act 2005. Again I think it is necessary to set out in full the provisions of s. 27 of that Act. It provides as follows:-
2 "27(1) Where an enactment is repealed, the repeal does not -
(a) revive anything not in force or not existing immediately before the repeal
(b) affect the previous operation of the enactment or anything duly done or suffered under the enactment,
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the enactment
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence against or contravention of the enactment which was committed before the repeal, or
(e) prejudice or affect any legal proceedings (civil or criminal) pending at the time of the repeal in respect of any such right, privilege, obligation, liability, offence or contravention.
(2) Where an enactment is repealed, any legal proceedings (civil or criminal) in respect of a right, privilege, obligation or liability acquired, accrued or incurred under, or an offence against or contravention of, the enactment may be instituted, continued or enforced, and any penalty, forfeiture or punishment in respect of such offence or contravention may be imposed and carried out, as if the enactment had not been repealed."
I now want to consider the submissions made in the various cases.
Mr. Rutherdale, counsel for the plaintiff pointed out that the mortgage in the Gunn case pre-dated the repeal of s. 62(7); there was default prior to the 1 st December, 2009; the demand was made prior to that date and the proceedings were issued prior to the 1 st December, 2009. On that basis, it was submitted that the plaintiff was entitled to relief pursuant to section 62(7). It was submitted that the plaintiff was entitled to rely on the provisions of s. 27 of the Interpretation Act 2005, and in this case reliance was placed in particular on the provisions of section 26(1)(e). Reliance was also placed on the provisions of section 27(2). It was said that these proceedings are concerned about a right accrued by the relevant...
To continue reading
Request your trial-
Minister for Justice and Equality v Pawel Surma
... ... and Equality v Gheorghe [2009] IESC 76, (Unrep, SC, 18/11/2009); Start Mortgages Ltd v Gunn [2011] IEHC 275, (Unrep, Dunne J, 25/7/2011) and ... the European Union, including the Netherlands, Italy, Hungary and others also allow for trials in absentia ... 47 However, in countries that ... ...
-
Irish Life and Permanent Plc v Dylan Dunphy
...AND DYLAN DUNPHY DEFENDANT REGISTRATION OF TITLE ACT 1964 S62(7) START MORTGAGES LTD v GUNN & ORS UNREP DUNNE 25.7.2011 2011/46/13101 2011 IEHC 275 LAND & CONVEYANCING LAW REFORM ACT 2009 S8(3) LAND & CONVEYANCING LAW REFORM ACT 2009 SCHED 2 LAND & CONVEYANCING LAW REFORM ACT 2009 PART V IR......
-
Grant v The County Registrar from the County of Laois
...possession of the land…should be deemed to be a mortgagee in possession.’ 37 In Start Mortgages Limited and Others v Gunn and Others [2011] IEHC 275 Dunne J. considered the rights of the registered owner of a charge under s.62(7) of the Registration of Title Act 1964 as follows: ‘It is cle......
-
Barford Holdings Ltd v Fingal County Council
...the permission if the requirements of the section are met. The decision of the High Court in Start Mortgages Ltd v Gunn and Others [2011] IEHC 275 (“ Start Mortgages”), identified in the submissions filed on behalf of the Attorney General, is instructive in that respect. That decision invol......
-
Legal Issues in Irish Residential Mortgages, September 2013
...Issues which Impact on Enforceability Repossessions/Start Mortgages v Gunn The cases of Start Mortgages Ltd & Ors v Gunn & Ors [2011] IEHC 275 and the subsequent decision in Tom Kavanagh and Fergus Lowe v Jeremiah Lynch and Saint Angela's Student Residences Limited [2011] IEHC 348 h......
-
RegBrief, Vol VI
...rectify the issues which were first raised by Dunne J in the 2011 High Court decision in Start Mortgages Ltd & Ors v Gunn & Ors [2011] IEHC 275 regarding repossession proceedings in respect of registered land. Further detail is included in our recently published update on Legal Issu......
-
Legal Issues In Irish Residential Mortgages
...or data processor under the Data Protection Acts and therefore must comply with the restriction on use of data thereunder. Footnotes 1 [2011] IEHC 275. 2 [2011] IEHC 3 [2012] IEHC 142. This article contains a general summary of developments and is not a complete or definitive statement of t......
-
Financial Regulatory Group Briefing - Vol 3, January 2013
...repossessions of registered land which first became apparent following the 2011 High Court decision in Start Mortgages Ltd v. Gunn [2011] IEHC 275 by the end of the first quarter of 2013 in a manner which removes "...the unintended constraints on banks to realise the value of loan collatera......
-
Wylie On Irish Land Law (6th Edition)
...arising with adverse possession in Ireland 20 to include issues arising around fraudulent concealment. 21 14 Start Mortgages v Gunn [2011] IEHC 275 (‘Start Mortgages’). 15 Rather generously, given his earlier questioning of the decision in the Start Mortgages case (para 14.25), we note he c......
-
Book reviews - Wylie On Irish Land Law (6th Edition)
...possession in Ireland20 to include issues arising around fraudulent concealment.21 14 15 16 17 18 19 20 21 Start Mortgages v Gunn [2011] IEHC 275 (‘Start Rather generously, given his earlier questioning of the decision in the Start Mortgages case (para 14.25), we note he confines mention of......