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

Start Mortgages Ltd v Gunn & Secured Property Loans Ltd v Clair & GE Capital Woodchester Homeloans Ltd v Mulkerrins & Grogan

BETWEEN

START MORTGAGES LIMITED

PLAINTIFF

AND

ROBERT GUNN AND MAURA GUNN

DEFENDANTS

AND

SECURED PROPERTY LOANS LIMITED

AND

TOM CLAIR AND MARY CLAIR

AND

G.E. CAPITAL WOODCHESTER HOMELOANS LIMITED

Start Mortgages Ltd v Gunn & Secured Property Loans Ltd v Clair & GE Capital Woodchester Homeloans Ltd v Mulkerrins & Grogan

AND

COLM MULKERRINS

AND

G.E. CAPITAL WOODCHESTER HOMELOANS LIMITED

AND

MICHAEL GROGAN AND SINEAD GROGAN

[2011] IEHC 275

[No. 1397 S.P./2009]

[No. 695 S.P./2010]

[No. 605 S.P./2010]

[No. 340 S.P./2010]

THE HIGH COURT

1 JUDGMENT of Ms. Justice Dunne delivered the 25th day of July 2011

2 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.

3 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.

4 I now propose to set out specific details in respect of each case.

1. Start Mortgages Limited v. Robert Gunn and Maura Gunn

5 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.

2. Secured Property Loans Limited v. Tom Clair and Mary Clair

6 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).)

3. G.E. Capital Woodchester Homeloans Limited v. Colm Mulkerrins

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.

4. G.E. Capital Woodchester Homeloans Limited v. Michael Grogan and Sinead Grogan

8 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.

The Law

9 I first want to refer to the provisions of s. 62 of the Registration of Title Act 1964, which are to the following effect:

10 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.

11 (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.

12 …

13 (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.

14 (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.

15 …"

16 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.

17 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:-

18 2 "27(1) Where an enactment is repealed, the repeal does not -

19 (a) revive anything not in force or not existing immediately before the repeal

20 (b) affect the previous operation of the enactment or anything duly done or suffered under the enactment,

21 (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the enactment

22 (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

23 (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.

24 (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."

Submissions

25 I now want to consider the submissions made in the various cases.

The Gunn Case

26 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...