Judgment Title: William Moran & Ors -v- AIB Mortgage & Ors
Neutral Citation:  IEHC 322
High Court Record Number: 2012 2701P
Date of Delivery: 27/07/2012
Court: High Court
Composition of Court:
Judgment by: McGovern J.
Status of Judgment: Approved
NEUTRAL CITATION NUMBER  IEHC 322
THE HIGH COURT
[2012 No. 2701 P]
WILLIAM MORAN, SHEILA MORAN AND MICHAEL MORAN
AIB MORTGAGE BANK, ALLIED IRISH BANKS PLC. AND JIM LUBY
JUDGMENT of Mr. Justice Brian J. McGovern delivered on the 27th day of July, 2012
1. In this action, the plaintiffs have challenged the appointment of the third named defendant ("the Receiver") by the first and second named defendants on foot of 24 separate Deeds of Appointment in respect of 24 separate mortgages. Fifteen of the mortgages are with the first named defendant and the remaining nine mortgages are with the second named defendant. All the relevant provisions of both the AIB and Mortgage Bank mortgages are identical.
2. The plaintiffs claim that the power to appoint a receiver is incorporated into the mortgages by reference to the Conveyancing Acts. Under the terms of the mortgages, the Conveyancing Acts include the Conveyancing Act 1881 and "any statutory modification thereof, whether by way of amendment. .. or appeal". The plaintiffs claim that the relevant provisions of the Conveyancing Act 1881 were repealed with effect from 1st December, 2009, by the Land and Conveyancing Law Reform Act 2009 ("the 2009 Act"). Accordingly, the plaintiffs maintain that the power to appoint a receiver incorporated into the mortgages is now solely that contained in the 2009 Act. The plaintiffs claim that the 2009 Act contains specific notice provisions in relation to the appointment of a receiver which have not been complied with by the first and second named defendants, and that as a consequence, the appointment of the third named defendant as Receiver is invalid.
3. Both the AIB and the AIB Mortgage Bank mortgages contain interpretation provisions which provide, inter alia:-
(a) The secured monies (whether demanded or not) shall be deemed to become due within the meaning and for all purposes of the Conveyancing Acts on the execution of these presents.
(b) The power of sale shall be exercisable without the restrictions on its exercise imposed by section 20 of the Act of 1881 . .."
(i) Notice requiring payment of the mortgage money has been served on the mortgagor, or one of several mortgagors, and default has been made in payment of the mortgage money, or part thereof for three months after service; or
(ii) some interest under the mortgage is in arrears and unpaid for two months after becoming due; or
(iii) there has been a breach of some provision contained in the Mortgage Deed or in this Act, and on the part of the mortgagor, or of some person concurring in making the mortgage, to be observed or performed, other than and besides a covenant for payment of the mortgage money or interest thereon."
7. Both parties, in their written submissions, refer the court to the decision of Laffoy J. in Kavanagh v. Lynch  IEHC 348, in which the court was considering the power to appoint a receiver under a mortgage which incorporated the provisions of the 1881 Act. At pp. 10-11 of her judgment, Laffoy J. stated:-
8. The plaintiffs refer to the definitions and interpretation section of the mortgages where it is stated:-
Reference to any enactment includes reference to any statutory modification thereof whether by way of amendment, addition, deletion or appeal and enactment with or without amendment."
9. Section 108(1) of the Land and Conveyancing Reform Act 2009 provides that:-
(a) following service of notice on the mortgagor requiring payment of the mortgage debt, default has been made in payment of that debt, or part of it, for 3 months after such service, or
(b) some interest under the mortgage or, in the case of a mortgage debt payable by instalments, some instalment representing interest or part interest and part capital is in arrears and unpaid for 2 months after becoming due, or
(c) there has been a breach by the mortgagor, or some person concurring in the mortgage, of some other provision contained in the mortgage or any statutory provision, including this Act, other than a covenant for payment of the mortgage debt or interest, the mortgagee or any other person for the time being entitled to receive, and give a discharge for, the mortgage debt, may appoint, by writing, such person as the mortgagee or that other person thinks fit to be a receiver of-
(i) the income of the mortgaged property. .."
13. A fundamental problem for the plaintiffs in this action is the fact that s. 96 of the 2009 Act only applies to mortgages created by Deed after the commencement of Chapter 3 of the Act (i.e. after 1st December, 2009). Section 96 provides:-
(a) apply to any mortgage created by deed after the commencement of this Chapter ..."
15. The provisions of the 1881 Act were incorporated into the mortgage and must be read as forming part of the terms of the contract. Any reference to amending legislation must be interpreted as a reference to amending legislation in force at the time that the contract was entered into.
16. The Receiver was validly appointed in this case and there is no valid basis on which the plaintiffs can challenge his appointment.