First Registration
Cases
Camiveo Ltd v Dunnes Stores
[2015] 2 IR 698, [2015] IESC 43
Court: Supreme Court (Ireland)
Judge: Mr. Justice Clarke
- The Issues
2.1
It should be recorded that a range of issues was initially canvassed by Dunnes in correspondence as to why it was not obliged to pay the rent and service charges demanded by Camiveo. Further, and to some extent different, issues were initially canvassed before the High Court. However, by the time the case came to be argued before this Court, there were only two, potentially connected, issues remaining, and one of them was an issue which Camiveo asserted, at least to some extent, that Dunnes ought not be allowed to pursue because it had not been argued before the High Court.
2.2
The first issue, which was argued before the High Court, concerned the fact that the deed of assurance by which Camiveo had acquired the Shopping Centres had, while executed by the vendor (‘Radical’), not been executed by Camiveo. On that basis, Dunnes argued before the High Court that Camiveo had not been shown to be entitled to the landlord’s interest in the leases in question and had not, therefore, been shown to be entitled to collect the rent and service charges in respect of which the proceedings were brought. That question turned on the issue of whether the absence of execution of the relevant documentation by Camiveo created any legal difficulty in Camiveo being entitled to enforce the obligations of the tenant, i.e. Dunnes, under the leases.
2.3
The second issue which Dunnes sought to canvas before this Court was, at least in one respect, connected. It would appear that there may be evidence to suggest that Camiveo has not yet become the registered owner of the Shopping Centres. It was in that regard that Dunnes brought a motion seeking to admit new evidence. That Camiveo was not yet registered was accepted by counsel for Camiveo in the course of the hearing before us. In that context, a question arose as to whether, in the light of s.25 of the Registration of Title Act 1964 (‘the 1964 Act’), (as substituted by s.128 of the Land and Conveyancing Law Reform Act 2009 (‘the 2009 Act’)) Camiveo is entitled to enforce the lease until such time as first registration of their interest in the Shopping Centres is effected with Camiveo as the registered owner. That question involves an interpretation of s.25 of the 1964 Act and is, for reasons which I will set out, a very net question of law not involving any disputed issues of fact. It should also be recorded that, while maintaining formal opposition to Dunnes being entitled to argue the point in question by virtue of the fact that it had not been argued in the High Court, counsel for Camiveo did suggest that there might be some importance to the parties in having that issue resolved, for, it was accepted, the same issue had the potential to arise in respect of any further proceedings which might be brought for any continuing failure to pay rent and service charges. Against the background of those issues, I turn next to the proper approach of the Court to this appeal and to the question of whether Dunnes should be entitled to argue the first registration point.
- The Proper Approach
3.1
It must be recalled that this is an appeal from a decision of the High Court in the context of an application for summary judgment. The jurisprudence concerning the test to be applied by the High Court in deciding whether, on the one hand, to grant summary judgment or, on the other hand, to give liberty to defend and remit the matter for plenary hearing, has been rehearsed on so many recent occasions that it would, in my view, be unhelpful to restate it again. The trial judge, correctly in my view, applied the principles identified in the judgment of Denham J. in Danske Bank a/s (t/a National Irish Bank) v. Durkan New Homes & ors [2010] I.E.S.C. 22. One aspect of the judgment in Danske Bank is worth noting. Denham J. quoted with approval from my judgment in McGrath v. O’Driscoll [2007] 1 I.L.R.M. 203, in which it was suggested that it was open to a court, in the context of a summary judgment application, to resolve questions of law or questions concerning the construction of documents provided that there was no real risk that, in so doing within the confines of a summary judgment motion, the court might be impaired in coming to an appropriate determination.
3.2
Clearly it is inappropriate for a court, in considering the facts on a summary judgment application, to form any general view as to the credibility of the evidence put forward by the defendant (see Irish Bank Resolution Corporation (in special liquidation) v. McCaughey [2014] I.E.S.C. 44), although there is, as identified in that judgment, a limited capacity to review the credibility of a defence put forward in very extreme circumstances by reference to the judgments of Hardiman J. in Aer Rianta c.p.t. v Ryanair [2001] 4 I.R. 607 and Finlay Geoghegan J. in Bank of Ireland v. Walsh [2009] I.E.H.C. 220. However, no such issues of fact seem to me to arise in this case.
3.3
It follows that it would be open to this Court to determine any questions of law arising in respect of either the point concerning the non-execution of the relevant documentation by Camiveo or arising out of the effects of s.25 of the 1964 Act provided that it was appropriate to decide those questions of construction or interpretation in the confines of a summary judgment motion.
3.4
The principles applicable to the exercise by this Court of its entitlement to entertain, on appeal, a point not argued at first instance were authoritatively stated by O’Donnell J. in Lough Swilly Shellfish Growers Co-Op Society Ltd. v. Bradley [2013] 1 I.R. 227 in the following terms at para. 28:-
‘ There is a spectrum of cases in which a new issue is sought to be argued on appeal. At one extreme lie cases such as those where argument of the point would necessarily involve new evidence, and with a consequent effect on the evidence already given (as inK.D. (otherwise C.) v. M.C. [1985] I.R. 697for example); or where a party seeks to make an argument which was actually abandoned in the High Court (as in ( Movie News Ltd. v. Galway County Council Unreported, Supreme Court, 25th July, 1977)); or, for example where a party sought to make an argument which was diametrically opposed to that which had been advanced in the High Court and on the basis of which the High Court case had been argued, and perhaps evidence adduced. In such cases leave would not be granted to argue a new point of appeal. At the other end of the continuum lie cases where a new formulation of argument was made in relation to a point advanced in the High Court, or where new materials were submitted, or perhaps where a new legal argument was sought to be advanced which was closely related to arguments already made in the High Court, or a refinement of them, and which was not in any way dependent upon the evidence adduced. In such cases, while a court might impose terms as to costs, the court nevertheless retains the power in appropriate cases to permit the argument to be made’.
3.5
There is at least something of a connection between the new point sought to be argued here and the point which was before the High Court. Both are concerned with the legal requirements which must be in place before a transferee of the interest of a landlord in a lease can be entitled to sue on the lease. In addition, the new point sought to be argued is a pure question of law which does not require any consideration of controversial facts. For those reasons, it is appropriate to position the point sought to be argued in this case at least towards the end of the spectrum identified by O’Donnell J. in Lough Swilly in which the Court might, everything else being equal, be disposed towards allowing a new point to be argued.
3.6
However, it seems to me that there is an appropriate quid pro quo for the Court adopting that position. In my view, the Court should allow Dunnes to rely on the new point on the basis that there is no reason why that point cannot be definitively determined at this stage within the confines of a summary judgment motion. It is a point of pure law involving the construction of one section of an act. It seems unlikely that any greater length of time would have been devoted to the hearing on the point in question before this Court had the point arisen in an appeal after a full hearing. This is, therefore, the type of point in which the Court has a discretion to reach a final conclusion on a summary judgment motion (although, as pointed out by Denham J. in Danske Bank, a court is never obliged to reach a final decision on such points). However, in the circumstance of this case I am satisfied that it would be appropriate both to permit Dunnes to raise the point but also to reach a final conclusion on the question of interpretation which that point gives rise to. In reaching that conclusion I have, at least in part, been influenced by the position adopted by Camiveo, which did not point to any real prejudice in the point being canvassed and which did not strenuously resist Dunnes being permitted to argue the question. In that context I would admit the proffered new evidence which is not, as I have already noted, disputed as to its accuracy.
3.7
Finally, I should add that it seems to me that the point arising out of the non-execution of the relevant deed of assurance is also one which can and should be finally resolved by this Court on this appeal. The facts are not in dispute. The deed was not, at any material time up to the conclusion of the summary judgment hearing in the High Court, executed. The terms of the deed are, likewise, not in dispute. Whether a deed of that type, transferring the interest of a landlord to a purchaser, requires to be executed before the landlord can enforce the lease in question is, therefore, a matter of law involving the terms of both the deed of assurance and the lease. It involves no disputed questions of fact and is a net question of law.
3.8
Furthermore, there is no dispute but that Radical has been paid all of the monies due under the transaction and has itself executed the relevant deed of assurance. Affidavit evidence was before the High Court on behalf of Radical which made it clear that it did not assert any continuing interest in the Shopping Centres or in the landlord’s interest in the leases over the properties.
3.9
In those circumstances, it seems to me that the proper approach to adopt is to consider both the execution point and the registration point on their merits and to definitively determine them in the context of this appeal. I, therefore, turn first to the execution point.
4 The Execution Point
4.1
Hogan J. delivered an ex tempore judgment on the summary judgment application on the 14th July, 2014. The Court has the benefit of a note of that judgment. At paragraph 5 of that note, the trial judge identifies the non-execution of the relevant deed of assurance. Thereafter, the trial judge said the following:-
‘ However, a Deed of this kind is valid and efficacious even if one party has not signed it provided that it is not sought to make the non-executing party liable under the Deed. If a party signs the Deed they are bound by the associated burdens. This principle is merely a variant of the old doctrine that you cannot sue on foot of a document unless the party to be charged has signed it.
It is unusual and doubtless is an oversight that the Deed was not executed by the plaintiff but, as between the plaintiff and the defendant, the defendant is bound by the Deed of Assurance. The very act of the plaintiff in suing as landlord in respect of the rent allegedly due would estop it from denying that it is the landlord. The mere fact that the plaintiff has not executed the Deed does not render it invalid or unenforceable.
I do not have to consider estoppel but there is evidence that the defendant is estopped from denying the title of the plaintiff and that the plaintiff would likewise be precluded from denying that it is the landlord under the Deed. I refer in that regard to the small insurance sum which was paid by the defendant to the plaintiff. However, I do not rest my decision on this.’
4.2
It is against those findings that Dunnes appeals. There was significant reliance placed by Dunnes at the hearing of this appeal on what was said to be confusion or uncertainty as to the true identity of the person or entity to whom the landlord’s interest in the Shopping Centres was to pass. There is no doubt that there was some early correspondence which was confused. It is also true that the precise arrangements entered into by Camiveo which, it would appear, is a general partner in a partnership and purports to hold the legal interest in that capacity, do not involve an absolutely straightforward transfer of the landlord’s interest to a purchaser who is to be the sole legal and beneficial owner. However, the deed of assurance is clear. The entity to which the interest of the landlord purports to pass under that deed is Camiveo and no-one else. Subject to the execution point, I do not see how there could now be any conceivable doubt but that Camiveo has become the owner of the landlord’s interest.
4.3
The legal position is, in my judgment, well settled and is simply and authoritatively stated in the leading text book, Norton, A Treatise on Deeds 2nd Ed., (London, 1928) at pp. 26–27, where the author says that ‘ Though execution of a deed is necessary to bind the grantor, yet a party who takes the benefit of a deed is bound by it though he does not execute it.…’
4.4
For the purposes of this case, there seems to me to be two important aspects to that clear principle. First, in the ordinary way, a deed does not have to be executed by the grantee in order that it take effect in the grantee’s favour. A deed executed by the grantor (the vendor in the case of an ordinary purchase transaction) will transfer the interest of that party once it is executed by the party concerned and irrespective of whether it has been executed by the party to whom that interest is to be transferred.
4.5
I did not understand counsel for Dunnes to dispute that general proposition. However, it was argued on behalf of Dunnes that the leases under which Dunnes holds its property contain covenants on the part of the landlord such as, for example, a covenant which might preclude another major store being opened in the Shopping Centres. On that basis it is said that Dunnes is entitled to be satisfied that Camiveo is bound by the landlord’s obligations under the leases, for otherwise Dunnes might be left without redress in the event that there was any breach. Counsel for Camiveo did suggest that this was a somewhat hypothetical issue for, it was said, there was no question of a breach of the landlord’s obligations. I am not sure that this, in itself, is an answer. The question with which this Court is concerned is one of principle, being whether, in the context of the leases in question, the landlord’s interest can be said to have passed even though the landlord has not executed the deed of assurance. The answer to that question could not be affected by whether there happened to be an issue as to whether the landlord had been in breach of an obligation placed on that landlord under the leases in question. Either the landlord’s interest has passed or it has not. If it has not passed then the fact that there might not have been any issue over compliance with the landlord’s obligations would not cause it to pass. Likewise, if it has passed then the absence of any dispute would not change that fact either.
4.6
However, it is in that context that the second aspect of the principle identified in Norton seems to me to be conclusive. It is clear that a party who purports to take the benefit under a deed will be bound by the terms of that deed even if they have not executed it. That is but an example of the general rule of law which does not permit a party to approbate and reprobate the same transaction. A party cannot have the benefit of a deed while at the same time disavowing its obligations under the same deed.
4.7
That represents an entirely logical and commonsense position. If a deed contains benefits and burdens then it would, of course, be wrong to say that by simply executing the deed and purporting to confer the benefits on a named party, the burdens would also be placed on that named party without that party executing the deed in question and, thereby, accepting the burdens. The named party is entitled to consider whether it wants to take up the burdens and whether the combined effect of the benefits and the burdens makes it worthwhile. But the named party cannot have it both ways. If it takes the benefits it must also take the burdens contained in the same deed.
4.8
This is a classic example of the working of that general principle in action. Camiveo has paid the money, the vendor accepts that it has divested itself of all of its interests in the property, Camiveo has not executed the deed of assurance but has acted as owner by attempting to collect rents. Camiveo has, therefore, clearly and beyond any dispute, acted in a manner consistent only with it taking the benefit of the deed and is, therefore, in accordance with the principle identified in Norton, ‘ bound by it though he does not execute it’.
4.9
It follows that it is manifestly clear that Camiveo is bound, as a matter of common law, by the terms of the lease in favour of Dunnes insofar as that lease may place any obligations or burdens on the landlord. That is so because Camiveo has taken the benefit of the deed of assurance of the ownership of those lands in its favour and cannot, therefore, escape any burdens which flow from that ownership. In that context, it seems to me that the trial judge was completely correct to take the view that there was no merit whatsoever in the execution point and to refuse leave to defend on that basis.
4.10
Before leaving the execution issue, it should be noted that Dunnes sought to rely on s.64 of the 2009 Act. However, it is clear that s.64 is concerned solely with the methodology of effecting execution and has nothing to do with the circumstances in which a party may be bound by a deed even though they have not executed it. I am not satisfied that any basis has been shown for suggesting that the deed of assurance, which was, of course, from Radical to Camiveo, was executed by Radical other than in accordance with the requirements of section 64.
4.11
Camiveo sought to place reliance on s.69 of the 2009 Act, which expressly provides that a reservation operates without execution of the conveyance or regrant by the grantee. On that basis, I am satisfied that Camiveo was also correct to argue that the suggestion made by Dunnes, which sought to place reliance on the existence of any exceptions or reservations in favour of Radical in the relevant deed, could not, because of the provisions of s.69, in any way be said to have prevented the interest of the landlord passing to Camiveo under the deed in question. Those additional points simply confirm the position which I have already identified, which is that there is no merit in any aspect of the execution point raised by Dunnes and that the trial judge was correct in refusing leave to defend on that basis. It is then necessary to turn to the registration point.
5 The Registration Point
5.1
The starting point has to be the legislation itself. Section 25 of the 1964 Act (in its current form) provides as follows:-
‘ 25.—A person shall not acquire an estate or interest in land in any case in which registration of ownership of the land is or becomes compulsory under section 23 or 24 unless the person is registered as owner of the estate or interest within 6 months after the purported acquisition or at such later time as the Authority (or, in case of refusal, the court) may sanction in any particular case, but on any such registration the person’s title shall relate back to the date of the purported acquisition, and any dealings with the land before the registration shall have effect accordingly.’
5.2
It will be noted that the section indicates than an estate or interest is not to be acquired unless the relevant person ‘is registered as owner’ within six months or such later time as the Property Registration Authority (‘the Authority’) or the Circuit Court on appeal may sanction. It is important to note that it is the actual registration which is required to occur within six months or such extended time as may be provided. The section makes no reference to the time within which the application to register is required to be made.
5.3
The background to this issue is the very radical extension in the obligation of first registration which came about as a result of the 2009 Act. Up to that time, compulsory registration in the main only arose in respect of three counties or because of state ownership. For historical reasons, much agricultural land became registered land by virtue of the fact that its ownership was affected by measures adopted by the Land Commission, which measures carried with them an obligation of first registration. However, a great deal of urban land was not registered. The main urban areas were not included in those counties in respect of which compulsory first registration previously applied.
5.4
The net effect of all of this was that the 2009 Act created an extensive new obligation of first registration which applied to large amounts of land including much developed, urban land and arose on the sale of such lands. Thus, one of the practical consequences of the widespread sale of assets in recent years has been the obligatory first registration of much of the land in question. Many of the relevant properties in respect of which that obligation arose are investment properties which are subject to leases. While it may not affect the legal rights and obligations arising, it is worth noting that, in the absence of an enormous increase in resources, it would be highly unlikely that the Authority would be in a position to handle, in any timely way, all of the applications for first registration which necessarily arise.
5.5
Be that as it may, it is necessary to consider Dunnes’ point. Dunnes argues that s.25 is clear in its terms and prevents the interest of a landlord from passing to a purchaser unless and until first registration has been effected. It is said, importantly, that a consequence of this is that a relevant purchaser of land which is subject to a lease does not have a right to collect rent until first registration is completed. Furthermore, it is said that where, as here, an application for first registration is not made within six months of the relevant transaction, additional difficulties arise. In the course of discussion with the Court, counsel for Dunnes, fairly, squared up to the consequences of that submission. It does seem to be the case that, if the position adopted by Dunnes in this case is correct, then a great number of parties who have bought the landlord’s interest in urban investment properties in recent years may have, unwittingly, purchased properties where they will have no right to collect rent until the Authority finds itself in a position, under the burden of a great number of applications, to give effect to a first registration application. But, as counsel pointed out, if that is the clear meaning of s.25 then the Court must give effect to it even if the consequences are as drastic as suggested.
5.6
I will turn to the question of the proper construction of s.25 in early course. However, it is important to make a number of points concerning issues which do not seem to be relevant. First, it does not seem to me that the time of the application for first registration is particularly relevant. It is, of course, the case that it would be impossible for first registration to be effected within six months if the relevant application is not made until after six months has elapsed. But even if the application is made well within the six month period, the section speaks of the estate or interest not passing until registration is actually effected. The section makes no reference to the time of application. It follows that, on the construction advanced by Dunnes, the entitlement of a purchaser to enjoy the benefit of an acquired estate or interest in land which is subject to the first registration requirement is postponed for an indefinite period until the resources of the Authority permit it to complete the application for first registration. That would, indeed, amount to a very significant impairment in the property interests of purchasers who will, after all, have paid the purchase price and would, under the ordinary law, be entitled to an immediate enjoyment of the property concerned. In the context of investment property, the primary means of such enjoyment is, of course, the receipt of rent for the property concerned.
5.7
The second side issue concerns the potentiality for an extension of time. The section itself makes clear that the Authority may sanction an additional period. Contrary to the submission of Dunnes, there is nothing in the section which requires a party to make an application for an extension of time. Rather, the Authority may, of its own volition, extend time. Clearly, in cases where an application for first registration is made within six months, the Authority may well feel constrained to extend time if it should prove impossible to deal with the application within a six month period through no fault of the applicant. But the Authority is also entitled to take a general view that it will not penalise parties who do not make their application within six months, although the Authority is, nonetheless, required to assess whether it is appropriate to extend time in any particular case.
5.8
It is in that context that correspondence from the Authority in this case is of some relevance.
5.9
The text of a letter written by the Authority in this case is as follows:-
‘ Dear Sirs,
I refer to your recent enquiry regarding the operation of Section 25 of the Registration of Title Act 1964, as substituted by Section 54 of the Registration of Deeds and Title Act 2006.
In line with the function of the Authority to promote and extend the registration of ownership of land, as set down in Section 10(1)(b) of the Registration of Deeds and Title Act 2006, it is not the general policy of the Authority, to refuse to sanction lodgement of an application for first registration, at a time later than the 6 month period after execution of the disposition. Any such refusal would be appealable to the Court.
In these particular cases, the applications for first registration have been accepted for processing. The examination of the titles presented has commenced and is ongoing. Subject to rulings on title, mapping, any continuation searches directed by the Chief Examiner of Titles and to the applications being otherwise in order, registration will proceed. Subject as aforesaid, on completion of registration, the applicant’s title will relate back to the date of execution of the relevant disposition.
Yours faithfully,
Fergus Hayden
Deputy Registrar
24 July 2014’
5.10
It seems to me that the intent of that letter is clear. First, the Authority has made it clear that it does not have a general policy of refusing applications for first registration just because the application is made outside the six month period. Second, and importantly, it is clear that the Authority is prepared to consider this application on its merits notwithstanding the fact that it was not made within that six month period. It seems clear that the Authority retains the entitlement, in an appropriate case, to decline so to do, and in that context the Authority has clearly not adopted an impermissible fixed policy. However, it is absolutely clear on the uncontested facts of this case that the question of the timing of the application by Camiveo for first registration in this case is no longer an issue and that the Authority intends to consider it on its merits. In those circumstances, I cannot see how the timing of Camiveo’s application is of any relevance. The Authority has, in substance, effectively extended time. The application will be determined on its merits and in whatever timeframe the resources of the Authority permit. Camiveo is, in that context, in no different a position to any other applicant for compulsory first registration, whether that applicant applied within or outwith the six month period. Camiveo will have to wait until the resources of the Authority permit the first registration application to be completed, but, likewise, it is in the same position as very many other applicants in that regard.
5.11
Finally, by way of background, it is also important to note that s.25 is not dissimilar in its terms from the general law concerning registration under s.51(2) of the Registration of Title Act 1964. The interest of a registered owner is only transferred to a new owner on the transferee becoming registered. It is true that s.90 of the 1964 Act expressly permits a person who is entitled to become the registered owner, but who has not yet been registered, to deal in the land, although it is silent on the question of whether a transferee might be entitled to recover rent on foot of a lease pending registration. However, the underlying position, which is consistent with the principle behind the registration of title system, is that it is only the registered owner who is recognised. That principle gives rise to the requirement that a purchaser must actually become the registered owner before the relevant interest in the land is actually taken to be transferred, and likewise, is in part behind the requirement in s.25 that actual registration take place before the relevant estate or interest can be said to have passed.
5.12
It follows from the foregoing that, if the argument of Dunnes is correct, a landlord transferring their interest in developed property which is subject to leases must necessarily be taken to lose the right to collect rent in respect of the leases in question until such time as the registration of a transfer (in the case of land already registered) or a first registration (in the case of land which was, up to that time, unregistered) takes place. It is true, as counsel for Dunnes accepted, that an obligation to pay back rent would, in any event, arise once proper registration had been effected. But there can be no doubt that, if the construction put forward on behalf of Dunnes is correct, the obligation to pay rent will be postponed until registration is actually achieved. Given that the time of actual registration, and not the time of an application for registration, is the operative point in time for these purposes, it follows that the period during which the obligation to immediately pay rent would, on that view, be postponed would be largely dependent on the ability of the Authority to deal with the relevant transaction rather than being affected by any actions on the part of the parties. That would be quite an extraordinary, and, indeed, it must be said, almost certainly an unintended, consequence of the legislation. But again, as counsel correctly pointed out, if that is the correct construction of s.25 then the Court must enforce it whatever the consequences may be.
5.13
A provision similar in terms to the current s.25 has been present in the registration of title legislation going back to the Local Registration of Title (Ireland) Act 1891. Section 25 of that Act, which is in similar form to the current provision, was considered both in Re Furlong and Bogan’s Contract [1893] 31 L.R. Ir. 191 and in Re Mitchell and McElhinney’s Contract [1902] 1 I.R. 83.
5.14
In Re Furlong and Bogan’s Contract, Chatterton V-C expressly noted (at p.195) that the wording of the section provided that ‘it is enacted that on the registration being effected it shall relate back to the date of the execution of the conveyance; and then follow words which clearly recognize the right of the purchaser to deal with the lands pending the registration, namely “and any dealings with the land before the registration shall have effect accordingly”’. It should be noted that the current s. 25 contains exactly the same wording.
5.15
On that basis Chatterton V-C held that:-
‘ It is true that the vendor had not yet acquired any estate in the lands, but she had an inchoate right incapable of being defeated, and only waiting for an official duty to be performed to become an absolute estate’.
5.16
Likewise, in Re Mitchell and McElhinney’s Contract, Porter M.R. described (at p. 88) a vendor whose registration as owner had not been completed as having a ‘perfectly good holding title’.
5.17
On the basis of an analysis of those cases, the authors of Wiley and Woods, Irish Conveyancing Law (3rd Ed.) at p.366 para. 12.50 suggest that, once an instrument of transfer has been put in place and the balance of any purchase monies owing has been paid, the purchaser has an equity to be registered as owner and has an unregistered right to the land valid as against the registered owner and all other persons except a registered transferee for value. In my view that correctly states the legal position.
5.18
To like effect, the author of McAllister, Registration of Title in Ireland (Dublin, 1973) suggests, at p. 47, that the effect of those cases is that ‘although no estate passes a right or equity to the ownership does pass under the conveyance’.
5.19
It seems to me that the law on this point is clear and long established. The Oireachtas, in enacting the 2009 Act and the revised version of s.25 of the 1964 Act contained in it, used language which had been the subject of clear and consistent judicial determination over the years. It must be presumed that the Oireachtas did not intend to bring about any change in that clear judicial interpretation. On that basis, it is clear that, even though no estate or interest in the land in question passes until such time as first registration is effected, a purchaser has a sufficient equity in the property to give them a right to the land which is valid against anyone other than a registered transferee for value. In other words, someone who fails to give effect to first registration runs a risk. If it were to happen that a grantor (such as Radical in this case) were to transfer the land to someone else (who took without notice) and who became the registered owner, then the party who was grantee in the earlier deed would not have a sufficient equity or entitlement to defeat the interests of that newly registered owner. But in respect of all other persons the earlier grantee would have a superior unregistered right in the lands.
5.20
In passing, it should also be noted that even the theoretical risk of which I have spoken would have had no application to the facts of this case. The deed of assurance dated the 7th May, 2013, from Radical to Camiveo was registered in the Registry of Deeds on the 27th May of that year. When the sale was closed, the title to the Shopping Centres was an unregistered title and, accordingly, priority was governed by the Registration of Deeds Act (Ireland) 1707 which Act remains in force and is likely so to remain until all land becomes subject to the registration of title regime. Thus, a third party would not have been able to take the property concerned without notice because any such third party would have been required to conduct a search in the Registry of Deeds, and by so doing would have identified the deed of assurance and have been notified of the priority which Camiveo had acquired by that deed. Therefore, even the theoretical risk which I have identified as facing a party who delays in complying with their obligation of first registration would have had no application in this case. But aside altogether from that question it is clear, for the reasons already addressed, that Camiveo has an unregistered right in the lands which is in practice good in respect of all persons.
5.21
Applying that general principle to the position of the owner of a landlord’s interest, it is necessary to analyse the various rights and obligations which arise. If Dunnes’ argument is correct then it follows that the interest of Radical cannot be said to have passed to Camiveo unless and until first registration has been effected. But it logically follows from that proposition that Radical remains the owner of the relevant estate or interest in the land. What would happen if Radical were to seek to collect the rent from Dunnes? First, on what basis could Dunnes say that they did not have to pay the rent? The whole point of Dunnes’ submission is that the interest of the landlord cannot be said to have passed to Camiveo. If it has not passed to Camiveo then it must remain in Radical. On the basis of Dunnes’ argument being correct, Dunnes could not refuse to pay Radical. But if Camiveo, hardly surprisingly, were to complain to Radical about the rent being received by Radical, what answer could Radical give? As is clear from the authorities to which reference has been made, Camiveo has an unregistered right which is valid as against the vendor, being Radical. Therefore, Camiveo is entitled, as against Radical, to receive any rent to which Radical might otherwise be entitled. It follows that, even if Dunnes were to proffer the rent to Radical, Camiveo would be entitled, as against Radical, to take that rent.
5.22
For Dunnes to suggest that the proper interpretation of s.25 leads to the conclusion that it does not have to pay rent to Camiveo necessarily means that the rent would have to be paid to Radical, as no estate or interest would have passed. But it would follow that to adopt that position would be to allow Radical to benefit as landlord as against Camiveo, which is entirely contrary to the authorities. It seems to me to follow that there is nothing in s.25 which precludes a person who has been the subject of an apparently valid assurance of lands which are subject to an obligation of first registration from enforcing any of the rights which go with the ownership of the lands in question pending first registration being put into effect. Before concluding on this aspect of the case, I would make one further observation.
5.23
Counsel for Dunnes suggested in the course of argument that we did not know what the result of the application for first registration on the part of Camiveo might be. At a highly theoretical level, that may be so. However, Dunnes itself cannot contest the title of its original landlord and is not in a position to contest the title of Radical. It must, from Dunnes’ perspective, therefore, be presumed that Radical would have been entitled to first registration, for to question that entitlement would be to permit Dunnes, as tenant, to question the title of their own landlord from whom they hold whatever interest in the Shopping Centres they have.
5.24
But there is no basis on which it can be suggested that the assurance from Radical to Camiveo did not effectually pass all of Radical’s interest in the Shopping Centres to Camiveo, subject only to registration. While it is true that the principle that a tenant cannot question his landlord’s title does not necessarily apply in a way which would preclude a tenant from questioning, on a legitimate and stated basis, whether the interest of his former landlord had validly passed to a new owner, nonetheless, no sustainable basis was put forward in this case for suggesting that there was anything untoward about the deed of assurance between Radical and Camiveo which would have prevented Radical’s interest from passing to Camiveo as a matter of ordinary property law. The execution point which might have led to a different conclusion has, of course, been rejected.
5.25
It follows that Dunnes is precluded from making any argument which suggests that Radical would not have been entitled to first registration, and has not put forward any basis for suggesting that the entitlement of Radical did not fully pass to Camiveo. For the purposes of this case there just is no basis for suggesting that Camiveo is not entitled to first registration. It is, therefore, appropriate to describe the position of Camiveo in the same language as was used by Chatterton V-C in the context of Furlong and Bogan’s Contract at p.195. Camiveo has ‘an inchoate right incapable of being defeated and only waiting for an official duty to be performed to become an absolute estate’.
5.26
On that basis I am more than satisfied that Camiveo is entitled to enforce the entitlements of the landlord under the leases with Dunnes, including requiring the payment of rent and service charges.
6 Conclusions
6.1
For the reasons set out in this judgment I have concluded that it is appropriate to allow Dunnes to argue the issue raised as to whether s.25 of the 1964 Act in its current form precludes Camiveo from enforcing the obligation to pay rent and service charges under the relevant leases until such time as Camiveo becomes registered on foot of an application for first registration. In that context, I would admit the new evidence referred to in Dunnes’ motion. However, for the reasons advanced in the latter part of this judgment, I am not satisfied that this point is of any merit. I conclude that, once a valid deed of assurance is executed and the purchase money paid, the purchaser, notwithstanding the obligation of first registration, has ‘an inchoate right incapable of being defeated, and only waiting for an official duty to be performed to become an absolute estate’. I am also satisfied that such inchoate right carries with it an entitlement to enforce any of the rights of a landlord under a lease of the lands in question.
6.2
For the reasons also set out in this judgment I am satisfied that the fact that the deed of assurance by which Camiveo acquired the Shopping Centres was not, at the time when this case was at hearing before the High Court, executed by Camiveo, does not prevent Camiveo from being able to enforce the relevant leases against Dunnes.
6.3
It follows that the appeal should be dismissed and the order of the High Court affirmed.
O’Riordan v SLGI (Holdings) Plc
[2019] IEHC 247
Court: High Court (Ireland)
Judge: Mr. Justice Alexander Owens
JUDGMENT of Mr. Justice Alexander Owens delivered on the 11th day of April 2019.
1
The plaintiff has applied for trial of a preliminary issue in a notice of motion dated 12th December 2018. It is agreed between the parties that the hearing of this application can be treated as a hearing of the issue and that for this purpose, I can have regard to the elements in the affidavits filed which establish undisputed facts.
2
The action relates to an office block known as ‘ ADT House’ which is located at 113 Phibsborough Road, Dublin 3. This unit is just south west of Cross Guns Bridge at the Royal Canal and it was formerly part of the Ranks City Mill. The plaintiffs acquired the freehold and intermediate titles by a conveyance dated 31st August 1993, Park Avenue Estates Limited -to- Michael O’Shea and Brian O’Riordan, subject to and with the benefit of a 35-year lease dated 4th September 1987 in favour of the second defendant, ADT Limited.
3
At the end of March 2018, Mr. O’Shea and Mr. O’Riordan asked ADT why it had not paid the rent. They were told that the first defendant had succeeded in becoming registered in the Land Registry as owner of the property and that ADT had surrendered the lease and vacated possession. ADT had paid the first defendant to get out of the lease and it may be inferred that the first defendant used the registration to represent that it had acquired the superior interest in order to negotiate the surrender and get this payment. The Folio shows the 1997 lease as a registered burden on the superior freehold interest.
4
It has long been recognised that the registration of deeds system does not enable searching which allows precise identification of lands described in the memorials to deeds. The old index of lands never functioned properly and the index of names searches and memorials of deeds often do not identify with precision the location of the lands assured in the acts which turn up on searches. It is difficult to avoid the conclusion that somewhere in this case fraudsters identified this weakness in the system and interposed a fake deed and a false title with a superficial plausibility.
5
ADT House now appears in the file plan referred to in Part 1 (A) of Folio 220572F County Dublin.
6
The issue before me is whether the matters deposed to establish that the plaintiff is entitled to an order cancelling the registration of the first defendant as full owner with absolute title of Folio 220572F County Dublin. This registration was made on foot of Dealing D2017LR131291W and took effect on 15th November 2017.
7
Since 1st June 2011, the compulsory registration provisions of section 24 of the Registration of Title Act 1964, as amended, have applied to conveyances and assignments on sale of freehold and leasehold unregistered land in Dublin. Where sales were completed after that date it became necessary to apply for first registration in any case where an application for first registration could have been made on a voluntary basis previously.
8
Where unregistered land is bought, the solicitor for the purchaser investigates the title to that land prior to completion and nowadays prior to the contract of sale. Title is shown by the vendor and is deduced from an acceptable root of title. Copies of the deeds and other documents to vouch that title are produced by the vendor’s solicitor for inspection by the purchaser’s solicitor.
9
Applicants for first registration of a property following a sale where the purchase money does not exceed €1,000.000.00, may avail of the Form 3 procedure set out in Rule 19 (3) of the Land Registration Rules 2012. This permits the Property Registration Authority to register without itself carrying out any investigation of the title, in reliance on the certificate of a solicitor as embodied in that form. I refer to the content of Form 3 as set out in the Rules. The solicitor certifies that the title is in order.
10
The solicitor who acts for the purchaser in a sale will usually process the purchaser’s application for first registration. That solicitor will have fully investigated the title. If the title is in order that solicitor should be in a position to give the certificate in Form 3, which must be based on title deduced from a root of title set out in Rule 19 (1). This Rule specifies that the title must be deduced from a conveyance for value made more than 15 years prior to the date of the application and the solicitor who signs the Form 3 certifies that the title is in order on that basis. If the title is not sufficiently evidenced, the solicitor should not give an unqualified certificate and Rule 19 procedure may not be availed of.
11
A conveyance dated 20th December 2016, Kent International Holdings LLC -to- SLGI (Holdings) plc, purported to assure the freehold of ADT House the first defendant. This claim to title was based on the assertion that ADT House had previously been assured by a conveyance dated 1st February 1990, Park Avenue Estates Limited -to- Woodslim Limited. The evidence establishes that the property assured by the 1990 conveyance did not include ADT House. It conveyed an adjoining property situated immediately to the west of ADT House and the map attached to it made this clear.
12
Following the 2016 conveyance, an application to the Land Registry for first registration was submitted by Mr. Herbert Kilcline, a solicitor on behalf of the first defendant. This included a Form 3 certificate dated 27th October 2017, signed by Mr. Kilcline. Paragraphs 2 and 3 of this certificate were incorrect. They stated as follows:
‘I have investigated the title to the property described in the Deed of Conveyance dated the 20th day of December 2016 lodged herewith. The property in or over which the estate or interest acquired by the conveyance exists is shown on the application map lodged herewith edged in red.’
‘As a result of my investigation of title, I certify the Deed of Conveyance of 1st of February 1990 conveyed the freehold in the property, effecting the merger of prior leases, subject to the lease in perpetuity of 20th June 1851 (between John William Bell later misspelled as Bayly and John Pemberton) and subject to the lessee’s interest in a lease dated 4th September 1987 from Park Avenue (sic) Limited to ADT Limited in the property for 35 years commencing on 4th September 1987, an attested copy of the memorials are lodged herewith in the applicant, free from any adverse rights, restrictive covenants or incumbrances except those subject to which the conveyance expressly conveyed the property.’
13
The true position is that ADT House was not conveyed to Woodslim Limited in 1990. It was occupied by ADT Limited under the 1987 lease and they were paying rent to Mr. O’Riordan and Mr. O’Shea who had bought the property in 1993. The property did not devolve to the vendor to the first defendant in the manner asserted in the Form 3 or the recitals to the conveyance dated 20th December 2016.
14
Woodslim Limited has denied that it had ever conveyed the property to the vendor to the first defendant and no copy of an executed deed from that company has been produced. A copy of a statutory declaration of a very inadequate sort has been exhibited on behalf of the first defendant. This purports to give an explanation from the vendor to the first defendant of how it came to lose the original of a deed from Woodslim conveying the property to it. It seems very doubtful that any such document was ever executed and no competent solicitor would accept this sort of evidence without much more detail.
15
Affidavits filed on behalf of the first defendant exhibit documents which point to materials which Mr. Kilcline may have had available to him when he provided his certificate. Whether or not Mr. Kilcline believed what was stated in his Form 3 certificate is not relevant. The certificate was wrong. It is unlikely that he had copies of the original title documents. He cannot have had a copy of the 1990 deed which included a map and made clear that it related to the adjoining property. The material produced by the first defendant’s deponent and the Property Registration Authority suggest that the only pre- 2014 documents held were copies of memorials of registered deeds and Registry of Deeds hand searches.
16
The application of the first defendant to the Property Registration Authority for first registration of its freehold title in the Land Registry, was misconceived. The first defendant had at no stage acquired the title which it claimed to hold. The affidavits filed on its behalf are most unsatisfactory and do not indicate the identity of any solicitor who acted for it in the acquisition of the property, or whether that solicitor also acted for the vendor or the circumstances of when and how Mr. Kilcline came to be involved or what documents he had available to him. It is unclear what, if any, investigations of title took place at the time of the deed to the first defendant.
17
The paper trail of title which the first defendant relied on as the basis of its application for first registration started with a fundamental mistaken assumption, misstatement and error as to the effect of the 1990 deed and then proceeded through a series of documents, each of which was either dubious, non-existent or unimpressive and in some cases a mixture of all three. The matter has been dealt with on the affidavits. It is unnecessary for me to decide whether the participation of the first defendant in all of this involved foolishness or knavery. The upshot of the error is that an application was made for registration of the first defendant in the Land Registry as owner of freehold land which it did not in fact own and had no title to good, bad or indifferent.
18
It is urged on me on behalf of the first defendant that Mr. Kilcline was acting as agent for the Property Registration Authority and that any mistaken suppositions which he made in his Form 3 certificate is not the responsibility of the first defendant. There is no evidential support for this fanciful contention. Mr. Kilcline was acting on behalf of the first defendant and the Authority was relying on his certificate in the same way as a bank taking security relies on the title certificate of a solicitor acting on behalf of a borrower. The scheme of the Form 3 procedure set out in the 2012 Rules places responsibility for the certificate on a solicitor who certifies to the Authority that the title of the applicant has been investigated and is in order. The certifying solicitor performs his task on behalf of the applicant and is not engaged by the Authority.
19
If the property had been transferred to a purchaser by the registered owner prior to the issue of the plaintiff’s ownership coming to light, there might have been something to the submission that the registration should stand and that the Authority would have to assume responsibility for the faulty certificate and compensate for losses arising as a result. Nothing of this sort happened in this case and the first defendant must live with any shortcomings in the certification by its agent.
20
It is also asserted that there was an arrangement between the first defendant and its vendor that the consideration of €250,000.00 specified in the deed would not be released until the first registration was completed and that the subsequent release of this money should preclude an order for rectification of the register to cancel the ownership. The suggestion appears to be that this release of money, if it took place, was a change of position in reliance on the registration which should have an equivalent effect to that of a sale or charge in favour of a purchaser. I do not accept this. The application for first registration was processed on behalf of the first defendant who must have known of the potential deficiencies in the title. There is nothing to indicate that either of the parties to this arrangement had a copy of the original of the 1990 deed or the map attached to it. They were taking their chances.
21
Affidavits filed on behalf of the first defendant disclose that it is in the business of buying in doubtful titles. In this case, it took it upon itself to put up a doubtful title for registration and any arrangement to postpone payment by it of money can only be viewed as a recognition of this reality. This title would never have passed muster if the land had been put up by the first defendant for sale prior to first registration, or if it had been produced by it to demonstrate to ADT that the first defendant was now its landlord. The affidavits put in on behalf of the first defendant do not demonstrate that Mr. Kilcline conducted an examination of title which was sufficient to permit him to issue the Form 3 certificate. The fact that the application for first registration succeeded was an undeserved stroke of good fortune.
22
I have no doubt that I have jurisdiction to make an order setting aside the registration of the first defendant as registered owner of Folio 220572F of the Register, county Dublin. Section 31 (1) of the 1964 Act, recognises the existence of the jurisdiction of this Court to make orders of this sort, where a first registration or any registration has resulted from ‘ actual fraud or mistake’.
23
In some cases, it may be inappropriate to rectify the register, as would happen if the rectification would disturb the registration of a subsequent transfer or charge for value. A purchaser who takes a transfer but has not yet been registered as owner, would be in a similar position to resist rectification if the claim was not protected by the registration of a lis pendens as a burden on the Folio prior to the closing of the sale. None of these potential bars to rectification apply for the benefit of the first defendant here.
24
There is nothing in what I propose to order which interferes in any way with the general rule set out in section 31 (1) of the 1964 Act. This general rule is that the register is conclusive evidence of the title of the registered owner and can be relied on as such. A person acting in reliance on what is in the register and who is not a party to what is called ‘ actual fraud’, is not on notice of matters other than burdens which have not been registered or burdens which affect the land without registration.
25
I am not making any finding in relation to whether ADT was entitled to rely on the then registration of the second defendant as the full owner of the superior at the time that the 1987 lease was surrendered by it to the first defendant. That is an issue for another day.
26
There will be an order that the register of freeholders be rectified by the elimination of the registration of Folio DN220572F, which was the subject matter of Dealing number D2017LR131291W and that the registration of the first defendant as full owner of the lands described in that Folio be set aside.
Lagan Bitumen Ltd v Tullagower Quarries Ltd
Decision confirmed by the Court of Appeal in [2019] IECA 89
[2017] IEHC 258
JCourt: High Court (Ireland)
Judge: Mr. Justice Tony O’Connor
JUDGMENT of Mr. Justice Tony O’Connor delivered on 2nd day of May, 2017
Introduction
1
This judgment, by the agreement of the parties at the end of the trial on 15th February 2017, is limited to determining the boundaries of the lands comprised between Folios CE52291F [in respect of which the plaintiff is the transferee according to the Deed of Transfer dated 1st April, 2016, from Whelan’s Limestone Quarries Limited (‘ WLQL’) and the receiver appointed to WLQL on 28th January, 2011] and those comprised in Folio CE 19816F registered in the name of the defendant. Once the boundaries are defined, the entitlement to a right of way appurtenant to Folio CE52291F over the defendant’s land may be the subject of a further hearing and determination.
History
2003 Contract
2
The basis for a thirteen year delayed claim for rectification by the defendant constitutes, on the most favourable construction of events for the defendant, an extraordinary tale of alleged lack of attention to detail by two limited liability companies each owned or controlled by two brothers.
3
In short, the defendant owned by Mr. Jackie Whelan (‘ Jackie’) executed a contract dated 23rd December, 2003 (‘ the 2003 contract’) for the sale of 11.185 acres (4.52660891 hectares) of land in Co. Clare to WLQL, then owned by Mr. Paddy Whelan (‘ Paddy’).
2004 Transfer
4
By Deed of Transfer dated 24th February, 2004, (‘ the 2004 transfer’) the defendant transferred to WLQL the parcels of lands which were the subject of the 2003 contract and described in the 2004 transfer as:-
‘All that and those that part of the lands in the town land of Tullagower, Barony of Moyarta in the County of Clare being that part of the property comprised in Folio 19816F of the Register of Freeholders County of Clare outlined in blue on the map attached hereto and containing an area of 11.185 acres or thereabouts statute measure TOGETHER with a right of way for the Transferee, its successors in title…with or without vehicles…at all times and for all purposes in connection with the Transferee’s use and enjoyment of the lands hereby transferred for access to and egress from the lands hereby transferred over that part of the access way and shown outlined in orange on the said map attached hereto and marked with the letters “A”, “B”, “C” and “D”.’
Absence of Maps
5
None of the witnesses who gave evidence remembered whether a map was actually attached to the 2003 contract or the 2004 transfer when executed, despite the reference to a map in both. The Court was informed that no map which may have been attached to the original 2003 contract or the 2004 deed was retained by the same solicitor representing the defendant since 2003, up to and including the duration of the trial of these proceedings in February 2017.
6
Moreover, the Court was further told that the solicitor acting for WLQL in 2004, the solicitors acting for Anglo Irish Bank (‘ Anglo’) which provided loan monies to WLQL for the purchase of the lands and the rates department in Clare County Council, (which was furnished with a map by the defendant’s solicitors by letter dated 16th February, 2004, showing the portions of lands transferred) have been unable to produce a copy of a map of the lands transferred.
7
Even more perplexing is the absence of any map on the file of the Property Registration Authority (‘ PRA’) for the 2004 transfer. Nevertheless, the PRA registered and plotted the lands transferred with the benefit of a map which cannot be located now. That is the situation presented by the parties and particularly by the defendant who now seeks rectification of the 2004 transfer and the alteration of the PRA mapping for Folio CE52291F.
The Property Registration Authority
8
According to the mapping and records of the PRA, Folio CE52291F now shows two separate oblong like blocks containing 4.25 hectares and 0.90 hectares respectively. The total area in CE52291F is now 5.15 hectares or 12.72593 acres.
9
Folio CE19816F, from which Folio CE52291F was created, now contains 2.38 hectares or 5.88108 acres. It has a narrow stretch of land leading from the N68 (Ennis to Kilrush road) to a block of land surrounding all sides of the small block of CE52291F save for the southern side.
Registration Process
10
By letter dated 25th March, 2011, the solicitors for Anglo (the lender to WLQL) forwarded a subdivision map to the PRA. The digital mapping section of the PRA asked those solicitors by letters of:-
(i) 27th July, 2011 – whether ‘ the northern and western boundary (shown in blue) align with the extent of the folio boundary showing red ’
(ii) 7th November, 2011 – whether ‘ the subject of the transfer is the portions outlined in blue on the map enclosed’
11
The Court was given no information about the responses to those requests even though the Court directed that the original PRA file be brought to the Court for the parties and for any relevant submissions arising from observations which may be made.
Overview
12
The defendant alleges that the 2004 transfer and subsequent registration effected by the PRA does not accord with the agreement between Jackie for the defendant and his brother, Paddy, for WLQL in 2003. The defendant seeks inter alia rectification of the 2004 transfer by:-
(a) ‘ amending the area referred to in Part 1 of the schedule thereto…’ ‘from 11.185 acres to 8.45 acres’; and
(b) ‘ attaching thereto the map prepared by Hardiman McMahon dated 6th October, 2015 (‘ the HMcM map’), to identify the areas actually transferred.
together with orders pursuant to statute or equity directing the PRA to rectify the Land Registry maps attached to Folios CE19816F and CE52291F.
13
The 12.72593 acres presently registered in the PRA for Folio CE52291F does not accord with the figure of 11.185 acres in the 2004 transfer.
14
The defendant pleaded in its Defence and Counterclaim delivered on 22nd June 2016 that ‘ the correspondence between’ the solicitors for Anglo and the PRA together with the maps submitted did not reflect the agreement between WLQL and the defendant. The Defence pleaded that those solicitors were guilty of negligence, breach of contract, misrepresentation, negligent misstatement, and slander of title for which Anglo and the plaintiff among others ‘ are jointly and severally liable therefor to the Defendant.’ It is important to stress that neither the said firm of solicitors nor Anglo were represented at the trial of these proceedings. No one who worked at the relevant times in the said firm of solicitors, in Anglo or in the PRA was called to give evidence.
Evidence of Mr. Jackie Whelan
15
During the trial Jackie found it difficult to hear questions at times. Nevertheless, he satisfied this Court that he was an experienced businessman and a civil engineering contractor who still controls the defendant with experience and understanding of maps and acreage. Under cross examination he said that he ‘walked the place’ with Paddy during which they decided what WLQL sold and what the defendant bought. Significantly, Jackie did not state when he ‘walked the place’ with his brother and particularly whether the walk occurred before or after the execution of the 2003 contract or the 2004 deed even though he was able to mention that that they ‘were working there together for seven or eight years’. The Court also notes at this point that Paddy did not give evidence about walking the boundaries to agree them with Jackie.
16
Jackie admitted under cross examination that he viewed a map before the execution of the contract and that he was kept informed by the defendant’s solicitor of the transaction as it progressed. He pointed out that Mr. Liddy, who prepared a map in 2003 outlining two plots resembling those which are now comprised in folio CE52291F, worked for WLQL (‘the Liddy map’). Jackie did not explain in a satisfactory manner whether that map was relied upon by the defendant and WLQL. If Jackie was not cute, he was consciously unclear when answering questions about what he inspected or knew at the time of the 2003 contract and the 2004 transfer. In answer to my own question he ‘ put a lot of blame on [himself] for the simple reason that I should have followed it up more closely.’
17
This Court was neither satisfied nor convinced by Jackie that in December 2003 he had agreed the boundaries other than as set out in the 2004 transfer or as presently registered following replies give to the PRA. Rather the Court finds on the balance of probabilities that he and his brother, Paddy without any regard to the necessity for formal transfers, allowed the defendant to use lands outside its own boundaries as time unfolded for the operation and building conducted by their respective companies. Having listened to the witnesses, the Court is sceptical about the accounts given at trial in so far as it conveniently allows Paddy to help Jackie and more particularly his defendant company to wrestle back ownership of land which is registered in Folio CE52291F, in addition to accommodating or benefitting the defendant after the appointment of a receiver to WLQL in January 2011.
Evidence of Mr. Paddy Whelan
18
I should mention in this context also, Paddy’s clarification that a Mr. McKeogh, an accountant and director of WLQL, dealt with the paperwork for WLQL which had several engineers and some three hundred people working in and around 2003. Mr. McKeogh was among a number of witnesses including solicitors, engineers such as Mr. Liddy and others who could have assisted the Court and were not called to give evidence. The only engineer called to give evidence was a Mr. Hardiman who prepared the HMcM map in 2015 which was over twelve years after the transaction.
19
Paddy testified that it was ‘ quite possible’ that he saw the Liddy map before the execution of the 2003 contract and that the 2004 deed mentioned 11.185 acres. He explained that WLQL operated seven quarries at that time and was busy. He was unduly truculent when answering questions on cross examination and indicated a resentment of the plaintiff. Be that as it may, he admitted that there was a ‘ cock-up with the map’ and stated that ‘ it’s quite possible’ that the Liddy map with 11.185 acres in the top right hand corner was the basis of the 2003 contract.
20
Both Jackie and Paddy were well familiar with the area of an acre when solicitors were instructed or when they reviewed documentation from solicitors. Moreover, both had been involved in many business transactions. Suffice to say that the Court was bemused by the suggestion that it should in some way direct the alteration of the PRA records to identify boundaries which would reduce the area identified in the 2004 transfer by 2.735 acres or 1.1 hectares.
21
The case presented at trial for the defendant concentrated on the confusion arising from the various maps and sought to focus the Court’s attention on the absence of any boundary issue until after the appointment of the receiver to WLQL which sold the affected lands to the plaintiff.
22
Jackie and Paddy were brought through a rather improvised appearing one page agreement dated 1st December 2004 (one year after the 2003 contract) for the supply of water and electricity by the defendant to WLQL in exchange for stone from WLQL. Jackie and Paddy were the only signatories to this agreement. The purpose of this evidence was to indicate that the floor of the quarry was the principal area which was intended to be transferred to WLQL. This evidence did little, if anything, to corroborate the story which Jackie and Paddy would like this Court to believe. Similarly, the planning and quarrying details for the defendant merely showed that arrangements were made by two companies, (the owners of which were related and friendly to each other) which allowed them to operate their different businesses in close proximity to each other. Importantly scant regard was had by Jackie or Paddy over the years for the obligations of each company to regularise their title or legal status in respect of the lands used for the businesses and to the independent nature of each company.
23
Ms. Mary Burke (employed by Clare County Council from 1994 to 2014 and ultimately as a Senior Executive Chemist in the Environment Section of Clare County Council) explained that the defendant applied for a water discharge licence in 2005 (over a year after the 2003 contract) which was granted in January 2006. In her role for the County Council, she had viewed the quarry, ponds and recycling business on the lands. The outline of regulatory compliance for waste water by the defendant may have helped to convince the Court of the defendant’s claims if the Court was not so sceptical of the accounts given by Jackie and Paddy to wrestle back ownership of ponds and land for the defendant. In short, Ms. Burke, who readily acknowledged that she was neither a map surveyor nor an engineer, merely explained that a water discharge application by the defendant after the 2003 contract was consistent with the defendant’s allegation of ownership of the ponds.
Entitlement to Seek Rectification
24
The defendant in its Defence and Counterclaim delivered on 22nd June, 2016, sought for the first time an order rectifying the 2004 transfer. The defendant claims that there was a mistake in the 2003 contract and the 2004 transfer. The leading Irish authority on the issue of mistake in a contract for the sale of land is Irish Life Assurance Company v. Dublin Land Securities Limited [1989] I.R. 253, where the Supreme Court recognised the heavy burden on a party seeking to displace the express terms of an executed contract. Griffin J. observed at 263 that:-
‘The question to be addressed is whether there was convincing proof reflected in some outward expression of accord, that the contract in writing did not represent the common continuing intention of the parties on which the court can act and whether the plaintiff can positively show what that intention was.’ [Emphasis added by this Court].
25
The defendant has failed to establish that WLQL in December 2003 or at the time of executing the 2004 deed had agreed to take an area of land which was less than that described and particularised in the 2004 deed. As for convincing proof, the Court restrains itself from commenting any more unfavourably about the evidence adduced than it has already done earlier in this judgment.
Significance of Registration
26
Section 31(1) of the Registration of Title Act 1964 (‘ ROTA’) provides:-
‘ The register shall be conclusive evidence of the title of the owner to the land as appearing on the register and of any right, privilege, appurtenance or burden as appearing thereon; and such title shall not, in the absence of actual fraud, be in any way affected in consequence of such owner having notice of any deed, document, or matter relating to the land; but nothing in this Act shall interfere with the jurisdiction of any court of competent jurisdiction based on the ground of actual fraud or mistake, and the court may upon such ground make an order directing the register to be rectified in such manner and on such terms as it thinks just.’
27
Section 85(2) of the ROTA (as substituted by s. 62 of the Registration of Deeds in Title Act 2006) further provides:-
‘ Except as provided by this Act, neither the description of land in a register nor its identification by reference to a registry map is conclusive as to its boundaries or extent.’
Submissions for the Defendant
26
Counsel for the defendant submitted that the jurisdiction granted by s.31 of the ROTA is broad and exercisable on proof of either fraud or mistake, while mistake is not qualified in any sense. In other words, counsel urged that culpability, inadvertence or negligence added nothing to the use of the word ‘ mistake’. Counsel mentioned that once the Court is satisfied from credible evidence that a mistake has occurred, it may then go on to consider rectification of the register. Ultimately, the defendant relies on the equitable jurisdiction of the Court because of the last phrase in s.31(1) of the ROTA ‘ on such terms as it thinks just’.
27
In Boyle v. Connaughton [2000] IEHC 29, Laffoy J. found that the defendant had established a right in equity to have the land registry map rectified, once she was satisfied that the intention of the parties to the relevant transaction had not been given effect to because of a mistake in mapping boundaries. The mistake in that case was far less than that suggested on behalf of the defendant.
28
Counsel for the defendant cogently argued that the plaintiff’s own surveyor, Mr. Kestell, acknowledged that the Liddy map, which was suggested to be on the balance of probabilities the map attached to the 2004 transfer, showed a smaller area of land than that actually registered on Folio CE52291F now.
29
It was also submitted that the defendant should not be punished for an error of which it did not have notice until 2012, when the receiver to WLQL attempted to enter upon the land. Furthermore, an argument was made that the plaintiff was on notice of the dispute by reason of the lis pendens registered on 22nd September, 2015 for the defendant, when the plaintiff purchased its interest in Folio CE52291F in 2016.
Decision
30
Taking account of the detailed submissions of both sides, including those written submissions for the defendant dated 27th February, 2017 delivered following the conclusion of the trial, the Court determines as follows:
(1) The notice given to the plaintiff by way of the lis pendens registered on the 22nd September, 2015, in advance of the purchase by the plaintiff of its interest in Folio CE52291F, does not have any effect on the function of the Court under the relevant sections of the ROTA being sections 21, 31 and 85 thereof. My determination of the facts does not support an argument which avails the defendant in this regard.
(2) The remedy of rectification in this case is concerned principally with the 2004 transfer and the Court is therefore particularly concerned about whether there was complete agreement about the extent of the land transferred by the 2004 transfer, along the lines now suggested on behalf of the defendant. I have neither been convinced nor satisfied that the parties agreed anything on or before the 2004 transfer which could displace the terms of the 2004 transfer.
(3) Despite the harsh criticism in the Defence and Counterclaim of Anglo, its solicitors, and its assigns, for which they have not been given an opportunity to respond to in the course of these proceedings in addition to the conclusiveness of the register, counsel for the defendant undertook the rather uncomfortable task of alluding to, if not suggesting, rectification of the PRA register based on the 2004 transfer with the Liddy map as an alternative to rectification of the 2004 transfer. The difficulty for the Court in pursuing that line is that it must determine whether the boundaries in the 2004 transfer more accurately reflected the boundaries now between the two relevant folios, than those delineated by the PRA following receipt of replies to its enquiries.
(4) The conclusiveness of the register maintained by the PRA is not easily displaced. Although s.85 of the ROTA does not extend such conclusiveness to boundaries, it has long been recognised that s.85 gives protection against minor errors only. In this case the alleged error is not minor, because the defendant claims:
(i) The 2004 transfer related only to 8.45 acres, and/or
(ii) The difference between the 11.185 acres in the 2004 deed, and the actually registered area, as a result of the transfer and subsequent clarifications given to the PRA, led to an area of 12.72593 acres being registered for Folio CE52291F.
(5) Therefore, the Court proceeds to look at s.31 ROTA and whether its jurisdiction is triggered by a mistake. Bluntly put, the Court repeats that it is neither convinced nor satisfied on the balance of probabilities that a mistake has arisen as might justify the operation of the Court’s jurisdiction as sought. I have outlined how the defendant’s claim for rectification has failed due to the absence of a common intention concerning different boundaries on or before the execution of the 2003 contract, through to the execution of the 2004 transfer and beyond, which would entitle the defendant to rectification. The inability to explain when and how the PRA made the alleged mistake when plotting the boundaries following receipt of replies from solicitors having ostensible authority to answer queries concerning the boundaries, does not encourage the Court to upset the conclusiveness of the title to Folio CE52291F, or the more limited conclusiveness of the boundaries, as appear on the PRA mapping.
(6) The defendant has already averted in its defence and counterclaim to the possibility of negligence and other causes of action arising from what it alleges are the incorrect boundaries outlined for Folio CE52291F. The Court makes no finding for the purpose of any such action which may be pursued, because the relevant impugned parties have not been afforded an opportunity to vindicate their professional reputations if and when they are given an opportunity to comment upon or deny those claims.
(7) Lest there be any doubt, this Court is not seeking to punish or sanction the defendant for its conduct. The Court emphasises that it is acutely conscious of the significance of registration, and the onus to prove a mistake, as that term (‘mistake’) is used in s.31 of the ROTA, and in the established case law for claims seeking rectification.
Conclusion
31
In the circumstances, the reliefs sought by the defendant in its Defence and Counterclaim are refused.
32
The Court further refuses to make an order directing the rectification of the register or map for Folio CE52291F.
Hallihan v O’Connor
[2018] IEHC 109
Court: High Court (Ireland)
Judge: Ms. Justice O’Regan
JUDGMENT of Ms. Justice O’Regan delivered on the 7th day of March, 2018
Issues
1
By notice of motion on behalf of the appellant, in person, bearing date 18th January, 2017, the appellant has made an application under s. 19(1) of the 1964 Act seeking to annul the registration of Rory O’Connor as full owner of the above mentioned folio together with a direction to the Property Registration Authority (‘PRA’) to reinstate the previous owners being the appellant and Killian O’Shea and Kevin O’Shea.
2
Neither Killian O’Shea nor Kevin O’Shea have partaken in these proceedings. Rory O’Connor, the current registered owner and ACC Loan Management Designated Activity Company (‘ACC’) are both resisting the application of the appellant and are separately represented. ACC was the effective vendor to Mr. O’Connor resulting in Mr. O’Connor’s registration of the relevant folio on 27th February, 2015.
Background
3
The property, the subject matter of the within application is comprised within folio 26439 of the Register of Freeholders, County of Cork, situate at Church Lane, in the village of Castlelyons, County of Cork.
4
On 24th September, 2008, the appellant together with Killian O’Shea and Kevin O’Shea were registered as full owners of the property as tenants in common in equal shares and on the same date at entries nos. 3 and 4, in the burden section of the folio there are charges for present and future advances repayable with interest and ACC Bank plc was recorded owner of such charges. In addition, between 29th September, 2009 and 17th December, 2010, four judgment mortgages were registered in the burden section of the folio.
Appellant position
5
To ground the appellant’s application aforesaid he swore an affidavit bearing date 24th October, 2016. He has subsequently sworn two further affidavits respectively dated 27th April, 2017 and 28th June, 2017 in response to affidavits on the part of the respondents resisting his application.
6
In his initial affidavit the appellant complains that by way of a transfer of 25th February, 2015 ACC Loan Management Limited purported to transfer to Rory O’Connor the title to the within lands and as a consequence Mr. O’Connor made application to the PRA on 26th February, 2016 to become full owner of the lands. The appellant complains that the registration of Mr. O’Connor as owner by the PRA is contrary to statute law and common law and he claims the purported transfer to Mr. O’Connor is also illegal as the vendor did not have an interest in the relevant land. A further complaint is that there is no evidence of a power of attorney on behalf of ACC Loan Management Limited to support the execution of the transfer. In this regard in his affidavit he refers to Rule 55 of the Land Registration Rules 2012 where it is provided that where an instrument is executed by an attorney, the power of attorney in respect thereof shall be produced to the PRA. His said affidavit also relies on the Supreme Court Judgment in Kavanagh v. McLaughlin [2015] 3 IR 555, to the effect that s. 62(2) of the 1964 Act provides that an instrument of charge will not confer on the owner of the charge any interest in the land until the owner is registered as such. His final complaint in his initial affidavit is to the effect that his constitutional property rights have been breached and he relies in this regard on Article 40.3.2 of the 1937 Constitution of Ireland, which provides:-
‘The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.’
7
The appellant’s second affidavit is made in response to the affidavit of Rory O’Connor in which he takes issue and/or agrees with Mr. O’Connor in a number of respects, all being of no real consequence to his claim aforesaid, to para. 16 of the said affidavit. At para. 17 he asserts that ACC Bank plc resolved to re-register as a private limited company in the name of ACC Bank Limited and altered it’s memorandum of association on 27th May, 2014, and on that day ACC bank limited changed its name to ACC Loan Management Limited by way of special resolution. He accepts that this development was part of a process not only on change of name but also on change of status in that the company was no longer a bank. The appellant elucidates on his claim in stating that ACC Loan Management Limited was required to become the registered owner of the relevant former charge on his lands but did not do so and consequently were not conferred with any interest in the lands. Furthermore, he states that on 25th February, 2015 ACC Bank plc was no longer a public limited company nor was it a bank. He states that it was dissolved and it did not exist and had no assets.
8
The appellant’s final affidavit of the 28th June, 2017 is in response to an affidavit of Paul Shaw on behalf of ACC. Mr. Shaw in his affidavit at para. 13 of et seq thereof referred to a facility letter of 23rd February, 2005 from ACC Bank plc to the three former registered owners together with subsequent additional facilities to Killian O’Shea and Kevin O’Shea and consequential deeds of mortgage and charge respectively dated 2nd September, 2005 and 27th September, 2007. At para. 3 of the appellant’s affidavit of the 28th June, 2017, he denies that ACC had any interest in the facility letter or two mortgages and charges aforesaid. He denies that ACC Loan Management Ltd enjoyed a statutory power of sale under the 1964 Act. At para. 8 he states that the respondent (presumably referring to ACC Loan Management Ltd) did not become registered owner of any charge, therefore the PRA should not have completed an application for registration of Mr. O’Connor. At para. 10 he states that as the respondent failed to make any reference to any power of attorney and he believed that no such power of attorney is in existence. Finally, he refers to a legal office notice on the PRA website of 2014 where it states: –
‘On application by ACC Loan Management Ltd, in any particular case, it may be registered in substitution for ACC Bank PLC or ACC Bank Ltd., as owner of individual charges, on payment of a fee of €40’
9
In addition to the foregoing the appellant had tendered submissions bearing date 26th September, 2017. In support of his assertion that the transfer to Mr. O’Connor, and Mr. O’Connor’s subsequent registration breaches common law statute provisions and the constitution, the appellant relies on the Supreme Court judgment in Kavanagh v. McLaughlin aforesaid. He relies on same to support his proposition that ACC Loan Management Ltd by reason of the fact that it was not registered as owner of the charge, could not exercise a power of sale. He suggests that the agreement between ACC Loan Management Ltd and Mr. O’Connor was an illegal contract forbidden by statute and/or common law and/or the constitution, and the relevant statute being identified as s. 62(2) of the 1964 Act which in turn provides that there shall be executed on the creation of an instrument of charge an instrument in the prescribed form, 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.
Position of the respondents
10
Mr. O’Connor has sworn an affidavit of the 1st March, 2017 and has also tendered submissions to the court bearing date 7th July, 2017. Aside from resisting the appellant’s application it is also argued on behalf of Mr. O’Connor that s. 19(1) of the 1964 Act is not a proper vehicle in which to bring the appellant’s application before the court as there was no effective order or decision of the registrar in respect of which the appellant might be considered aggrieved. Further, it is argued that an Isaac Wunder order should be made by reason of the fact that prior to the institution of the within application the appellant instituted plenary proceedings on the 9th February, 2016, wherein the appellant sought a declaration that the transfer to Mr. O’Connor was unlawful and therefore null and void together with other relief, however these proceedings were discontinued by the appellant immediately prior to the hearing of an application by Mr. O’Connor to strike out the proceedings under O. 19, r. 28 of the Rules of the Superior Court, as they were allegedly frivolous, vexatious and bound to fail. Mr. O’Connor records in his affidavit that following the deeds of mortgage and charge of the 2nd September, 2005 and the 27th September, 2007 the borrowers defaulted and ACC Bank plc appointed a receiver on the 15th May, 2012 who subsequently placed the property on the market for sale and Mr. O’Connor agreed to purchase same on the 19th November, 2012 for €45,000. Because there was a difficulty in obtaining vacant possession a contract for sale was not signed until 4th February, 2015. Further because of the judgment mortgages herein before referred to it was agreed that ACC Loan Management Ltd would effect the transfer of the property to Mr. O’Connor for the purposes of ensuring that following such transfer the judgment mortgages would be discharged or otherwise removed from Mr. O’Connor’s registered ownership. Mr. O’Connor complains that on the 9th July, 2016 there was an incursion on the property with damage occasioned as a consequence whereof the gardai were called. Mr. O’Connor refers to the High Court proceedings aforesaid. At para. 15 he states that there is no basis for the contention that the transfer to him was an illegal contract and he asserts that ACC Loan Management Ltd was entitled to affect the transfer pursuant to its power of sale as the registered owner of the charge under s. 62(6) of the 1964 Act which provides that on registration of the owner of a charge 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 purposes of enforcement, 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. Mr. O’Connor denies that there was any deficiency in the proper execution of the transfer to him by ACC Loan Management Ltd.
11
In submissions on behalf of Mr. O’Connor, the basis for suggesting that s. 19(1) is not a proper vehicle for the within grievance on the part of the appellant is set out namely that there is no formal ruling by the PRA and this is an effective prerequisite in the triggering of a right to appeal under s. 19(1) as per McAllister on Registration of Title, Deeney on Registration of Deeds and Title in Ireland and r. 212 of the Land Registry Rules, 1972.
12
Insofar as the Isaac Wunder order application is concerned, Mr. O’Connor’s submissions do refer to such an order being granted where a person has habitually and persistently instituted frivolous and vexatious civil proceedings.
13
By way of response to the substance of the argument on behalf of the appellant, Mr. O’Connor’s submissions refer to s. 62 of the 1964 Act and assert that a power of sale arises under s. 62(6) of the Act. References made to s. 62(9) of the 1964 Act dealing with the owner of a charge transferring that charge to another person and the necessity for the transferee thereof to become the registered owner of the charge – it is on the registration of the transferee of a charge that the instrument of transfer shall operate as a conveyance by deed enabling enforcement thereof.
14
The submissions refer to the application of the 18th June, 2014 on behalf of ACC Bank plc to the Register of Companies to be reregistered as a private company by the name ACC Bank Ltd. In this regard it is to be noted that there is exhibited to the affidavit of Paul Shaw on behalf of ACC a certificate of incorporation and change of name bearing date the 27th June, 2014 issued from the Register of Companies to the effect that ACC Bank plc by special resolution and by approval of the registrar, changed its name and is now incorporated as a limited company under the name ACC Loan Management Ltd. The submissions refer to s.14 of the Companies Amendment Act, 1983, subsections 5 and 6 thereof. Under subsection 5, a certificate of incorporation is conclusive evidence that all requirements in respect of re-registration have been complied with and under subsection 6 the re-registration of a public company as a private company will not affect any rights or obligations of the company. The submissions refer to McCann and Corden on Companies Act: 1963 – 2012, p. 94 thereof to the effect that the re-registration of a public company as a private company does not impact on its corporate persona.
15
The submissions also deal with the fact that a power of attorney was not availed of by ACC Loan Management Ltd to effect the transfer as same was done in accordance with its articles of association and the seal of the company was affixed to the transfer authenticated by duly authorised persons.
16
As aforesaid, Paul Shaw on behalf of ACC swore an affidavit of the 1st June, 2017 wherein he sets out at para. 13 the facility letter of 2005 and the two subsequent mortgages of 2005 and 2007 together with various provisions thereof and the fact that the borrowers made default, and as a consequence on the 11th May, 2012 a receiver was appointed. It is noteworthy that none of these matters are at issue between the parties.
17
The affidavit asserts that the transfer to Mr. O’Connor was executed in accordance with s. 64 of the Land and Conveyancing Law Reform Act, 2009 and to this end the articles in memorandum of association of ACC are exhibited. Section 64(2)(ii) of the 2009 Act provides that an instrument executed after inter alia the 1st December, 2009 shall be a deed (within the meaning of the section) if it is executed by a company registered in the State under the seal of the company in accordance with its articles of association.
18
The submissions on behalf of ACC are undated. ACC suggests that reliance on s. 19(1) of the 1964 Act is misconceived and further suggests that the appellant effectively had misunderstood the decision of Kavanagh v. McLaughlin. The submissions deal with the provisions contained in s. 62 of the 1964 Act and the adequacy of execution of the transfer by ACC. Insofar as the impact of re-registration and/or change in status of the company is concerned, reference is made to s. 23(4) of the Companies Act, 1963 now incorporated in s. 30(6) of the Companies Act, 2014, to the effect that a change of name by a company shall not affect its rights and obligations. It also refers to s. 52(7) of the Companies (Amendment) Act 1983, a provision now incorporated in s. 1285(9) of the Companies Act 2014 to the effect that re-registration of a limited company to an unlimited company shall not affect rights and obligations of the company and quotes briefly from Courtney’s The Law of Companies, 4th Ed. 2016, at para. 34.006 which succinctly states: –
‘Reregistration does not change the identity of the entity: it remains the same legal entity, albeit a new type of company with a new name.’
19
Reliance is placed on a decision of Gilligan J. in Kearney v. Allsop Ltd [2016] IEHC 166 to the effect that s. 64(2) of the 1964 Act does not create any obligation on a company to transfer a charge in the event of re-registration as an unlimited company (see para 8/9 of that judgment).
20
The submissions state that whether or not the company holds a banking licence is irrelevant to the collection of debts.
Decision
21
In Kavanagh v. McLaughlin the Supreme Court was dealing with a transfer of undertakings from one corporate entity to another namely from Bank of Scotland (Ireland) to Bank of Scotland. Immediately following such transfer, Bank of Scotland (Ireland) was dissolved. Laffoy J. in the Supreme Court held that in those circumstances, the statutory power of sale under s. 62 of the 1964 Act could not arise until registration of the charge previously registered in favour of Bank of Scotland (Ireland) was registered in favour of Bank of Scotland.
22
Significantly therefore, Kavanagh v. McLaughlin dealt with a transfer of a charge between two separate and distinct entities unlike the situation which has occurred in the instant circumstances.
23
In accordance with: –
(a) Gilligan J.’s express views in Kearney v. Allsop at para. 8 and 9 to the effect that s. 62(2) of the 1964 Act does not create an obligation to transfer a charge on re-registration;
(b) Section 14(6) of the Companies (Amendment) Act 1983 which provides that on re-registration of a public company as a private company, the rights and obligations of the company are not affected;
(c) The statement in McCann and Corden on Companies Acts: 1963 – 2012, at p. 904 that the change from public company to private company status the same corporate persona subsists, Courtney’s Law of Companies at para. 34.006 to the effect that on re-registration the same legal entity subsists;
(d) The provisions of s. 52(7) of the Companies (Amendment) Act 1983 and currently s. 1285(9) of the Companies Act, 2014,
I am satisfied that the re-registration of the company herein from a public company to a private company has not had any altering effect on the rights and obligations of the company – there was no necessity to re-register the charges in the burden section of the folio at numbers 3 and 4 thereof.
24
I have the benefit of sight of a certificate from the Register of Companies as aforesaid bearing date the 27th June, 2014 and I am satisfied that pursuant to s. 14(5) of the Companies (Amendment) Act 1983, this certificate is conclusive. This fact coupled with the fact that s. 23(4) of the Companies Act 1963, (now s. 30(6) of the Companies Act 2014), a change of name of a corporate entity will not affect its rights and obligations, I am satisfied that the change of name from ACC Bank plc to ACC Loan Management Ltd has not had the impact contended for on behalf of the appellant and therefore the registration of Mr. O’Connor as full owner was in compliance with statutory provisions.
25
Therefore, at the date of transfer from ACC to Mr. O’Connor, the transfer was effected pursuant to the entitlement of ACC under s. 62(6) of the 1964 Act and therefore the registration of Mr. O’Connor as full owner was in compliance with s. 62(9) of the 1964 Act so that upon his registration this had the effect as a registration on a transfer for valuable consideration by a registered owner.
26
The legal office notice no. 5 of 2014, posted on the PRA website is an enabling provision only and does not alter the foregoing statutory provisions in any manner whatsoever.
27
The suggestion made by the appellant at para. 17 of his affidavit of the 27th April, 2017 to the effect that on the 25th February, 2015 ACC Bank plc was not any manner of a company for the purposes of the Companies Act and was dissolved and did not exist is not supported by the evidence and is not a correct statement of law.
28
There is no requirement at law that only banks can recover debts due and owing and in those circumstances, the fact that as and from the 25th February, 2015 ACC Bank plc (then known as ACC Loan Management Ltd) was not a bank, is entirely immaterial to the sequence of registration in this matter.
29
The transfer in favour of Mr. O’Connor and executed by ACC Loan Management Ltd was done so in accordance with s. 64 of the Land and Conveyancing Law Reform Act, 2009 and therefore clearly operated as a mortgage. It is also evident that in or about the execution by the transferor of that transfer no reliance was placed on any asserted or alleged power of attorney and in those circumstances the argument as to the failure to produce a power of attorney within the PRA at the time of application to register Mr. O’Connor as full owner, was not necessary and therefore no lapse arose.
30
In the circumstances there is no illegality or want of compliance with legislation in or about the valid and effective transfer of 2015 in favour of Mr. O’Connor and in accordance with s. 62(9) of the 1964 Act, once this transfer was registered it had the effect as registration on a transfer for valuable consideration by a registered owner. Given this status there is no breach of any constitutional right of the appellant.
31
The respondents’ arguments relative to s. 19(1) of the 1964 Act are noted. That notwithstanding I note that on the heading of the notice of motion the three affidavits of the appellant and the appellant’s submissions reference is made to O. 96. Order 96 deals with the making of an application or the bringing of an appeal to the court under the 1964 Act and accordingly in all of the circumstances I consider it appropriate that the court would deal with the misgivings expressed by the appellant in his documents aforesaid for the purposes of finally concluding the issues raised by him and indeed in the interests of ensuring that Mr. O’Connor will not henceforth be visited with these issues again.
32
I am not satisfied that it is appropriate at this time that an Isaac Wunder order should be made as against the appellant – the prior plenary proceedings were discontinued and the within hearing and judgment represent a full airing and determination of the issues which have clearly exercised the appellant.
33
The reliefs sought in the notice of motion of the 18th January, 2017 are hereby refused.