System Launceston Property Finance Dac v The Property Registration Authority
| Jurisdiction | Ireland |
| Judge | Ms. Justice Miriam O'Regan |
| Judgment Date | 19 March 2019 |
| Neutral Citation | [2019] IEHC 157 |
| Docket Number | [CT 40/2018] |
| Court | High Court |
| Date | 19 March 2019 |
IN THE MATTER OF SECTION 19 OF THE REGISTRATION OF TITLE ACT 1964
AND IN THE MATTER OF FOLIOS 4058 AND 8427F OF THE REGISTER OF OWNERSHIP OF FREEHOLD LAND COUNTY WICKLOW
[2019] IEHC 157
[CT 40/2018]
THE HIGH COURT
LAND REGISTRY
Registration of a charge – Registration of Title Act 1964 – Succession Act 1965 – Applicant seeking to appeal against the respondent’s refusal to effect registration of a charge – Whether it is possible to effect registration of a charge under s. 60(3) of the Succession Act 1965 by virtue of s. 77 and/or s. 69(1)(r) of the Registration of Title Act 1964
Facts: The applicant, System Launceston Property Finance Dac, appealed to the High Court pursuant to the provisions of s. 19 of the Registration of Title Act 1964 from the ruling of the respondent, the Property Registration Authority, dated the 18th July 2018 wherein the respondent refused to effect registration of a charge bearing date the 9th December 2005 and made between Ms Murphy, the legal personal representative of Mr S Murphy deceased (the LPR), and a third party, Mr I Murphy, in favour of Anglo Irish Bank Corporation plc (Anglo) on the basis that the LPR, as personal representative of the registered owner did not have power to create a charge over the registered lands registerable within the Land Registry.
Held by O’Regan J that there was no ambiguity in ascertaining the ordinary and natural meaning of s. 61(2) of the 1964 Act; the section does not, in accordance with the submissions made by the applicant, refer to any dispositions but rather any registered dispositions and indeed the applicant acknowledged there is a difference between a disposition and a registered disposition. O’Regan J held that there is nothing in s. 61(2) to suggest that the rights of a legal personal representative are co-extensive with the rights of registered owner. O’Regan J held that notwithstanding opportunity the applicant had failed to identify the purpose of s. 60(3) of the Succession Act 1965 in the event that the applicant’s submissions were acceptable. O’Regan J was satisfied that the applicant had not presented an argument to counter the views expressed uniformly by Fitzgerald on Land Registry Practice (2nd edition), McAllister on Registration of Title, Deeney on Registration of Deeds and Title in Ireland and Wylie’s Land Law (4th edition). O’Regan J was satisfied that it is possible to effect registration of a charge under s. 60(3) of the 1965 Act by virtue of s.77 and/or s.69(1)(r) of the 1964 Act.
O’Regan J held that, in the circumstances, the ruling of the respondent on the 18th July 2018 would be confirmed.
Appeal dismissed.
The matter comes before the court by way of an appeal on behalf of the applicant pursuant to the provisions of s.19 of the Registration of Title Act 1964 (the court has power to annul or confirm with or without modifications the ruling under appeal) from the respondent“s ruling dated the 18th July 2018 wherein the respondent refused to effect registration of a charge bearing date the 9th December 2005 and made between Angela Murphy, the legal personal representative of Sean B. Murphy deceased (the LPR) and a third party, Ivor Murphy, in favour of Anglo Irish Bank Corporation plc (Anglo) on the basis that the LPR, as personal representative of the registered owner did not have power to create a charge over the registered lands registerable within the Land Registry.
Sean B. Murphy, deceased died on 7th March 1989 and at the date of his death he was the registered full owner of the lands and premises mentioned in the title hereof. On the 19th April 1990, the LPR extracted a grant in his estate. On the 1st June 2005, the LPR joined with Ivor Murphy aforesaid who was then the registered owner of a third parcel of land, to sell the three registered plots to Michael Higgins and others for the total sum of €2.1m – funded by a loan from Anglo to the purchasers. As part of the sale process the LPR and Ivor Murphy joined in a charge bearing date the 9th December 2005 by way of security for the guarantee and indemnity granted by them to Anglo. The respondent refused to register this charge as against the subject property. It appears that the respondent did register the charge as against the property previously owned by Ivor Murphy.
Initially on the 5th January 2006 Anglo applied to the respondent to register the charge however the respondent declined to do so on the basis that there are limited circumstances when a personal representative may charge a deceased registered owner's property (see letter of the respondent of the 9th February 2006).
A further application to register the charge was made on the 23rd March 2012 however again, the respondent refused to register same and reiterated that the personal representative was limited in its ability to charge registered property and could only do so under s.60(3) of the Succession Act 1965.
On the 28th of March 2014 by loan sale deed Anglo sold its interest in the subject charge to the within applicant.
Prior to the oral hearing the parties tendered written submissions. The applicant's submissions are undated, the first of which includes a senior counsel's opinion of the 12th January 2018. Thereafter the respondent lodged submissions bearing date the 27th January 2019. The applicant tendered further written submissions, again undated, in response to the aforesaid written submissions of the respondent. At the hearing, the applicant tendered oral submissions, followed by a response by the respondent and then the applicant replied.
(1) The applicant submits that the transaction which occurred in December 2005 was more in the nature of a sale than a charge and therefore the respondent's submissions relative to a charge are irrelevant. The reality is that the LPR and a third party sold the relevant parcels of land to Messrs O'Higgins and others with Anglo providing the finance to the purchasers. As part of the deal the purchasers were not registered and the bare legal estate to be held by the vendors was charged to Anglo. Although the charge arose in the context of a sale nevertheless the status as between the LPR and Anglo was that of charger and chargee and accordingly the registration of the relevant document must be determined in connection with the law on registration of a charge. There simply was no sale by the LPR to Anglo to suggest that that was the nature of the relationship between the LPR and Anglo. I am satisfied therefore that the submission with regard to the within matter being in effect a sale is without merit. In the bulk of sales that occur a mortgage is also involved but this does not change the character of the mortgage document to a sale document.
(2) The respondent in written submissions states that no beneficial interest passed to the purchaser as a consequence of the transaction by reason of the fact that no transfer was executed. However, in the circumstances where the purchaser paid to the LPR and the third party the full purchase money of €2.1m it is inconceivable that a beneficial interest did not pass (see Tempany v. Hynes [1976] IR 101).
(3) The applicant states at para. 27 of the second set of submissions that the LPR doesn't have precisely the same powers as the registered owner. At para. 36 it is stated that s.61(2) authorises the registration of charges by an LPR as though the LPR was a registered owner. At para. 11 of the submissions it is stated that the LPR has the same rights as the registered owner – they are ‘co-extensive’.
(4) The respondent's submission proceeds on the basis that it is not disputed that there may be in existence a common law power enabling a LPR to enter into the instant transaction, but rather, the respondent adopts the position that there is no statutory power rendering the transaction capable of registration. Accordingly, for the purposes of this judgment it is assumed that the personal representative was vested with a common law entitlement as asserted by the applicant.
(5) The respondent does not dispute jurisprudence identified by the applicant on statutory interpretation in written submissions. However, in oral reply submissions the applicant introduced an additional judgment which the respondent did not have an opportunity to respond to namely the judgment of Mr. Justice Feeney in Commissioner of An Garda Síochana v. Oberoi [2014] 3 IR 444. At para. 22 of that judgment it is recorded that the purpose of statutory construction by the court is to discern the intention of the legislature. DPP v. Grey [1986] IR 317 is also cited and in particular the judgment of Henchy J. at para. 325 to the effect that there is a general rule that the court leans against the interpretation of a repeal of early statutes by implication when no expression of intention to exclude the earlier provision is included.
As aforesaid the entitlement of the LPR at common law is not disputed however the Registration of Title Act 1964 in its introduction is identified as an act to consolidate with amendments. In addition, in the schedule of repeals in that act the 1891 Act is the first enumerated statute.
(6) In both oral and written submissions, the applicant raises the issue of prejudice as a matter to be taken into account in the event of ambiguity in relation to the provisions of in particular s.61 (2) and s.69 (2) of the 1964 Act, being the cornerstones of the applicant's submissions. In this regard, it is noted that the within applicant secured the Anglo interest in the property under a loan sale deed of the 28th March 2014 and at that time there had been two failed attempts to register the charge with the respondent. This factual matter is clearly...
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