Ulster Bank Ireland Ltd v McDonnell
| Jurisdiction | Ireland |
| Judge | Kearns P. |
| Judgment Date | 21 February 2014 |
| Neutral Citation | [2014] IEHC 69 |
| Docket Number | [2012 No. 105 CA] |
| Court | High Court |
| Date | 21 February 2014 |
[2014] IEHC 69
[2012 No. 105 CA]
THE HIGH COURT
Equity - Mortgage - Security over land - Loan - Order for possession of property - Repayments - Default - Land registry - Demand for repayment - Repeal of legislation - Registration of Title Act 1964 - Land Law and Conveyancing Law Reform Act 2009
Facts: These proceedings concerned an appeal of a decision of the Circuit Court dated the 18th May 2012, whereby an order for possession of the respondents” property was refused. On the 25th October 2006, First Active plc made available an offer of a loan facility in the sum of €236,000 to the respondents with the loan being secured on a property they owned. This offer was subsequently accepted and a charge on the property in favour of First Active plc was registered in the land registry. On the 8th October, 2008, the business and assets of First Active plc were transferred to the appellant. Subsequently, the respondents defaulted in making a scheduled repayment as of the 15 th October 2009, which led to the appellant initiating proceedings to obtain possession of the secured property. The appellant had brought the application on the basis of s.62(7) of the Registration of Title Act 1964 (‘the 1964 Act’); however, the application was rejected in the Circuit Court on the basis that the Court lacked the jurisdiction to hear it. The 1964 Act had been repealed on the 1st December 2009 by s. 8 of the Land Law and Conveyancing Law Reform Act 2009, which had the effect of enacting new provisions that applied to mortgages created after the 1st December 2009. In this case, it was said that since the appellant had not made a demand for the repayment of the entire principal and interest before the 1st December 2009, it was not entitled to rely on the 1964 Act.
An appeal of the Circuit Court decision was initiated. The appellant argued that the present case should be distinguished from the case of Start Mortgages Ltd. v. Gunn [2011] IEHC 275, where it was held that s. 62(7) of the 1964 Act could not be relied upon unless the principal amount secured under the relevant charge had become due prior to the 1st December 2009. It was said that this conclusion was reached because the terms of the mortgage necessitated a demand for repayment before the monies could become ‘due and payable’, a requirement which was absent from the respondents” mortgage with the appellant. Instead, it was argued that the mortgage between the respondents and the appellant made it clear that the monies became due in the event of a default in repayment.
Held by Kearns P. that the cases of EBS Limited v. Gillespie [2012] IEHC 243 and Ulster Bank v. Carroll (Unreported, High Court, O”Malley J., 16th July 2013) made it clear that a demand for repayment was not necessarily required to ensure monies became due but would depend to a large extent on the terms of the mortgage.
In regards to the mortgage in the instant case, paragraph 8(a) made it clear that monies paid to the respondents would become repayable if the respondents defaulted in making one repayment instalment or in the payment of any other money payable by the respondents for a period of one month. It was clear that the respondents had failed to meet a repayment instalment prior to the 1 st December 2009; therefore, the monies owed to the appellant became due and payable prior to the repeal of s. 62(7) the 1964 Act. As a result, it was held that the appellant was entitled to seek an order for possession under that provision.
Appeal allowed.
INTRODUCTION
1.This is an appeal from an order of the Circuit Court of the 18th May, 2012, whereby an order for possession of the respondents” property was refused.
FACTS
2.By letter of loan offer dated the 25th October, 2006, First Active plc made available a loan facility in the sum of €236,000 to the respondents. This loan offer was accepted by the respondents on the 28th March, 2007. The loan was to be secured upon a property at 63 Lealand Avenue, Clondalkin, Dublin 22, Folio 16636F. It was repayable over a period of 29 years payable in instalments. A charge was granted by the respondents over the lands comprised in Folio 48386F by a deed dated the 19th April, 2007. This charge was registered in the land registry on the 25th June, 2007.
3.On the 8th October, 2008, the business and assets of First Active plc was transferred to the appellant by the Minister for Finance and the appellant is successor in title to First Active plc.
4.The respondents did not make payments in accordance with the terms of the loan facility, in particular the sum of €1,039.54 on the 15th October, 2009. This default continued for more than one month after the initial failure.
HISTORY OF THE PROCEEDINGS
5.The matter appeared before the Circuit Court on the 18th May, 2012. The appellant sought to distinguish the mortgage from the mortgages the subject of the decision in Start Mortgages v. Gunn [2011] IEHC 275 (Unreported, High Court, Dunne J., 25th July, 2011). The learned judge took the view that the Circuit Court was bound by the decision in Start Mortgages and since the bank in this case had not made a demand for the repayment of the entire principal and interest before the 1st December, 2009, it held that it was not entitled to avail of the provisions of s.62 (7) of the Registration of Title Act 1964 and therefore the court had no jurisdiction to hear the application.
RELEVANT LAW
6.Section 62(7) of the Registration of Title Act 1964 provided as follows:
‘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.’
7.This provision was repealed by s. 8 of the Land Law and Conveyancing Law Reform Act 2009. New provisions replacing it were included in that Act but they apply only to mortgages created after the 1st December, 2009.
8.Section 27 (1) Interpretation Act 2005 deals with the effect of repeals.
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.
Start Mortgages Ltd. v. Gunn
9.In Start Mortgages Ltd. v. Gunn [2011] IEHC 275 (Unreported, High Court, Dunne J., 25th July, 2011) the court held that as the Act of 2009 had repealed ...
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