High Court of Ireland Decisions

1. The Plaintiff claims possession of certain lands registered on folio 14339F Co. Kilkenny, pursuant to section 62(7) of the Registration of Title Act 1964. Section 62 provides that the registered holder of lands may charge those lands with the payment of moneys with or without interest, and that on registration of such a charge, the instrument of charge should 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 enforcing his charge, have all the rights and powers of a mortgagee under a mortgage by deed, including the power to sell such lands.

2. The Plaintiff is the registered owner of a charge which was registered on the 11th March, 1997 and which is described on the folio as “Charge for present and future advances repayable with interest”, and is noted to be stamped to cover £25,000. The instrument which is registered is in fact a mortgage and charge dated 25th February 1997 and made between the defendant of the one part and the plaintiff of the other part, and by clause 9 there of the defendant charged the lands with the payment to the Plaintiff of “the secured monies”. The phrase “the secured monies” is defined in the deed as meaning all monies and liability which the defendant covenants to pay to the Plaintiff or discharge under the covenants contained in the deed.

3. Under Clause 1(a) of the deed the Defendant covenants with the Plaintiff to repay to the Plaintiff:-

4. To understand what is meant by this covenant it is necessary to go back to the definitions in the deed of charge. “The loan” is defined as the principal sum specified in the schedule being the loan already advanced or to be advanced on the execution of the charge. In the schedule this is stated to be IR£25,000. “The loan agreement”, is defined as the agreement short particulars whereof are specified in the schedule, and this is stated in the schedule to be:-

5. Accordingly, in Clause 1 (a) of the deed the primary covenant to repay is stated to be a covenant to repay IR£25,000 by monthly installments until the entire loan is repaid. Clause 1(b) provides that if any of the monthly installments are not paid on the specified day, the defendant will pay further interest at a rate at which is in fact left blank. This again is a provision which anticipates repayment by monthly installments.

6. Clause 1(c) contains a covenant to pay on demand the mortgage expenses, which does not arise in the present case and Clause 1 (d) contains a further convenant to pay to the Plaintiff and discharge on demand “the general indebtedness and liability.” This latter phrase is again defined in the definition Clause, the effect of the definition being that it encompasses all monies owing by the Defendant to the Plaintiff for whatever reason, other than the loan and interest thereon and the mortgage expenses.

7. The loan agreement of 6th February, 1997 is in fact a commitment letter from the Plaintiff, which was accepted by the Defendant. The loan referred to in it is a loan stated to be of a gross amount of £25,000, and the contents are summarized on the 1st page:-

8. The agreement simply uses the £ sign without stating whether it is Sterling or Irish currency, but it does provide that the loan may be provided by the Plaintiff at its sole discretion in Irish punts or in Sterling, and the Defendant is to repay the gross amount of the loan in the same currency as that in which it was provided. The commitment letter also contains a provision whereby if the loan is not fully repaid within three months, interest will be paid monthly and in advance at 3% per month on the unpaid gross loan balance, and the loan may be renewed by the borrower on this basis after the initial three month period on a monthly basis on the payment of interest at this rate.

9. In fact, the Plaintiff advanced to the Defendant and to his solicitors the net sum of £21,250 in Sterling, and are now claiming the repayment of over £62,000 in Sterling.

10. The charge which is registered is quite clear. It charges the lands with the sum of IR£25,000, not that sum in Sterling, by the monthly installments set out in the commitment letter. In fact the loan was £25,000 sterling and the commitment letter expressly provides that it is not repayable by installments. The Plaintiff’s have stated in Court that they will waive their right to be paid Sterling and will accept the sum to be paid to be due in Irish punts. That is not the point. The charge, which is the only document which will allow them to obtain possession of the lands, is a charge in respect of an advance in Irish currency payable by installments. No advance was made in Irish currency, and no provision was made for payment by installments.

11. The Plaintiffs also make the case that they are entitled to possession in any event under the covenant to discharge on demand the general indebtedness and liability. However, the definition of “the general indebtedness and liability” which I have referred to above expressly excludes loan and interest payable under the commitment letter, and I have no doubt that the moneys which were advanced were intended to be advanced as part of the loan under the commitment letter. Accordingly, these monies would not appear to be caught by the phrase “the general indebtedness and liability”.

12. The Plaintiff can only recover possession if the principal monies secured by the deed of charge has become due. In view of the contradictions between the deed of charge and the commitment letter I do not think it could be said that the monies secured by the deed of charge have become due under the terms of the charge, and the Plaintiff can only recover possession if the monies are due under the deed of charge. Accordingly I must refuse the relief claimed.