Ulster Bank Ireland Ltd v Carroll

• Jurisdiction: Ireland
• Judge: Ms. Justice Iseult O'Malley
• Judgment Date: 16 July 2013
• Neutral Citation: [2013] IEHC 347
• Court: High Court
• Date: 16 July 2013

[2013] IEHC 347

THE HIGH COURT

Record No. 234CA/2012

Ulster Bank Irl Ltd v Carroll

No Redaction Needed

Between/

ULSTER BANK IRELAND LIMITED

Plaintiff

-and-

STEPHEN CARROLL AND VICKI CARROLL

Defendants

START MORTGAGES LTD v GUNN & ORS UNREP DUNNE 25.7.2011 2011/46/13101 2011 IEHC 275

EBS LTD v GILLESPIE UNREP LAFFOY 21.6.2012 2012/13/3829 2012 IEHC 243

MCATEER & BANK OF IRELAND MORTGAGE BANK v SHEAHAN UNREP O'MALLEY 13.9.2013 2013 IEHC 417

REGISTRATION OF TITLE ACT 1964 S62(7)

LAND & CONVEYANCING LAW REFORM ACT 2009 S8

INTERPRETATION ACT 2005 S27(1)

INTERPRETATION ACT 2005 S27

Practice and procedure- Mortgage- Clause- Default- Lenders rights- Case- Principal- Default- Interpretation Act 2005- Registration of Title Act 1964

Facts: The proceedings related to an appeal against an order of the Circuit Court refusing the claim for possession. The question arose as to whether the lender”s rights were governed by the decision of Dunne J. in Start Mortgages v. Gunn [2011] IEHC 275, requiring the demand to be made before the 1 December 2009 or the decision of Laffoy J. in EBS v. Gillespie [2012] IEHC 243, the latter concerning the demand to render the principal due. A loan facility had been made and the borrowers had granted a charge over the lands which was registered. The Court considered provisions relating to the demand clause.

Held by O”Malley J. that a letter of demand was not necessary for the entire principal to become due. There was an event of default on the part of the defendants. The approach of Laffoy J. in EBS v. Gillespie would be applied in the case. The Court would allow the appeal.

Introduction

1 This is an appeal against an order of Her Honour Judge Linnane of the Circuit Court of the 1 ^st November 2012 refusing the Plaintiffapos;s claim for an order of possession. The defendants did not appear before the court to contest the claim.

2 At the hearing of this appeal on 22 ^nd April, 2013, there was again no appearance by the defendants. Having heard the submissions of Counsel for the plaintiff I gave an ex tempore ruling allowing the appeal. Counsel then pressed for a written judgment. I agreed, with reluctance, to accede to his request. It must be stressed that this was an undefended and therefore unargued case and that this judgment is, as a result, of very limited value.

3 The issue in this case is whether the lenderapos;s rights are governed by the decision of Dunne J in Start Mortgages v Gunn or by the decision of Laffoy J in EBS v Gillespie. It should be noted that in the intervening period of time the court has heard and reserved judgment in the case of McAteer and Bank of Ireland v Sheahan, which was a fully argued case dealing with issues arising from the decision in Gunn.

4 By letter of Loan Offer dated the 14 ^th September, 2006 First Active plc made available a loan facility in the sum of €420,000 to Stephen Carroll and Vicki Carroll. The loan offer was accepted by the borrowers on the 28 ^th November, 2006. The loan was repayable by instalments over 35 years and was to be secured upon a property at 1 Woodford Court, Clondalkin, Dublin 22 which property was comprised in Folio 48386F of the Register County Dublin. The borrowers granted First Active plc a charge over the lands by a deed dated 8 ^th December, 2006 and the said charge was registered in the Land Registry on the 21 ^st May, 2007.

5 Ulster Bank is the successor of First Active plc as of 8 ^th October 2009.

6 The defendants first defaulted in making one of the monthly instalments required by the terms of the Letter of Loan Offer in or about January 2009. Subsequently, on 6 ^th December 2010 a letter issued to the defendants calling in the entire amount of the loan which at that point was in the sum of €426,073.57 which included a sum of €25,745.74 in respect of arrears.

7 S62(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.

8 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 1 ^st December, 2009.

9 Section 25 (1) Interpretation Act 2005 deals with the effect of repeals.

2 2 27.mdash;(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

10 In Start Mortgages Ltd. v Gunn [2011] IEHC 275 Dunne J held that as the 2009 Act had repealed section 62 (7) of the 1964 Act, mortgagees of registered property could not apply for summary judgment unless the principal amount secured under the relevant charge had...