High Court of Ireland Decisions

1. This is the Plaintiff's claim for possession of lands comprising approximately 44 acres being the lands registered on Folio 6500 of the Register of Freeholders County Westmeath pursuant to section 62(7) of the Registration of Title Act, 1964 (the Act of 1964).

2. Subsection (1) of section 62 of the Act of 1964 provides that a registered owner of land may, subject to the provisions of the Act of 1964, charge the land with payment of money either with or without interest. Subsection (6) of section 62 provides that, on registration of the owner of a charge on land for repayment of any principal sum of money with or without interest, 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 purpose of enforcing his charge, have all the rights and powers of a mortgagee under a mortgage by deed, including power to sell the estate or interest which is subject to the charge. Subsection (7) of section 62 provides as follows:-

3. The Court's discretion to make an order for possession under section 62(7) is dependant on the Plaintiff establishing that he is the registered owner of a charge on the registered land the subject of the proceedings and that repayment of the principal money secured by the charge has become due.

4. In this case the charge on foot of which the Plaintiff seeks an order for possession is a charge which was registered on Folio 6500 on 29th August, 1997 (Instrument No. X6478/97 stamped to cover £75,000) for present and future advances repayable with interest, the Plaintiff being registered as owner of the charge.

5. Instrument No. X6478/97 was an indenture of charge dated 11th July, 1997 made between the Defendant of the one part and the Plaintiff of the other part (the Deed of Charge). The relevant charging provision in the Deed of Charge in relation to registered land was Clause 9 whereby the Defendant was expressed to charge by way of charge for present and future advances the lands registered on Folio 6500 of the Register of Freeholders County Westmeath with payment to the Plaintiff of "the secured monies". The expression "the secured monies" was defined in recital A. B. of the Deed of Charge as meaning:-

6. The covenant for payment in the Deed of Charge was Clause 1 under which the defendant covenanted as follows:-

7. A number of the words and expressions contained in Clause 1 were defined in recital A. The "loan" was defined as meaning the principal sum specified at B in the schedule to the Deed of Charge which had already been advanced or which on the execution of the Deed of Charge would be advanced by the Plaintiff to the Defendant in accordance with the terms of "the loan agreement". The expression "the loan agreement" was defined as meaning the agreement short particulars whereof were specified at A in the schedule to the Deed of Charge. At A, in the schedule the particulars of the loan agreement set out were as follows:-

8. At B in the Schedule, the loan was stated to be IR£75,000.

9. In the grounding affidavit of Ronald Weisz sworn on 24th May, 1999, it was averred that the Defendant made an application to the Plaintiff for a loan in the amount of IR£75,000 on 18th March, 1997. It was further averred that the Plaintiff issued a Commitment Letter approving the loan request of the Defendant on 30th June, 1997 and that the Defendant signed the Commitment Letter, which was witnessed, accepting and agreeing to all terms in the Commitment Letter on 1st July, 1997. The Commitment Letter was exhibited. Under it's terms the Plaintiff made a commitment of funding in the gross amount of £75,000 to the

10. Defendant to comprise:-

11. The period of the agreement provided for was one year. Interest was to be payable on the principal sum of £75,000 at the rate of 2% monthly and the amount of £9,000 included in the gross amount of £75,000 represented the interest for the 7th to 12th months inclusive. The A.P.R. was stated to be 26.7%. However, the Defendant's total liability under the Commitment Letter for the credit advance of £59,750 for one year was £84,000.

12. The Plaintiff's claim for possession under section 62(7) has been advanced on the basis that repayment of monies advanced on foot of the Commitment Letter on the terms stipulated in the Commitment Letter was secured by the Deed of Charge. This may well have been what was intended by the Plaintiff and the Defendant. However, the Deed of Charge made no reference to the Commitment Letter. It referred to a letter of offer dated 18th March, 1997. Moreover, the covenant to pay in the deed of charge was a covenant not for repayment of a gross amount at the end of a period of one year but for payment of principal and interest by agreed monthly instalments. In short, the provisions for payment in the Deed of Charge are totally inconsistent with the provisions for repayment in the Commitment Letter.

13. The evidence before the Court does not establish that repayment of the principal money secured by the Deed of Charge has become due, as required by section 62(7) of the Act of 1964. Accordingly, the evidence does not establish that the Court's discretion to make an order for possession exists.

14. Accordingly, the Plaintiff's application is refused.