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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Pepper Finance Corporation (Ireland) DAC v Egan & anor [2019] IEHC 766 (14 November 2019)
URL: http://www.bailii.org/ie/cases/IEHC/2019/2019_IEHC_766.html
Cite as: [2019] IEHC 766
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Page 1 ⇓
THE HIGH COURT
[2018 No. 502 CA]
BETWEEN
PEPPER FINANCE CORPORATION (IRELAND)
DESIGNATED ACTIVITY COMPANY
PLAINTIFF
– AND –
MICHAEL (OTHERWISE GERARD OR GERRY) EGAN AND EILEEN EGAN
DEFENDANTS
JUDGMENT of Mr Justice Max Barrett delivered 14th day of November, 2019.
1. On 7.11.05, Mr and Mrs Egan entered into a home loan agreement with GE Capital
Woodchester Home Loans Limited. The grounding affidavit in the within proceedings
contains an erroneous averment that the lender was GE Capital Woodchester Finance
Limited. However, there is no doubt from the documentation that the lender was GE
Capital Woodchester Home Loans Limited. The loan cheque issued from GE Capital
Woodchester Limited. Nothing turns on this. The foregoing details are summarised in
Table 1 below.
Reality
Error?
Home Loan issued by GE
Capital Woodchester Home
Loans Limited by Mr and Ms
Egan on 7.11.05
Grounding affidavit erroneously swears to home loan
as having issued from GE Capital Woodchester
Finance Limited. The documentation clearly shows
that the home loan issued from GE Capital
Woodchester Home Loans Limited.
Loan Cheque of 14.12.05 issues
from GE Capital Woodchester
Limited
No error presents. No issue presents by virtue of the
cheque issuing from another
Indenture of Mortgage of
07.04.05 executed between Mr
and Ms Egan and GE Capital
Woodchester Home Loans
Limited
No error presents.
Table 1.
2. GE Capital Woodchester Home Loans Limited has undergone a couple of relevant
name/status-changes since the home loan issued. These are summarised in Table 2
below. These changes have the end-result that the within proceedings have correctly
been brought in the name of Pepper Finance Corporation (Ireland) Designated Activity
Company.
Page 2 ⇓
11.10.2012.
29.10.2015.
GE Capital Woodchester Home Loans Limited
Changes name to Pepper Finance
Corporation (Ireland) Limited.
Pepper Finance Corporation (Ireland) Limited
Converts from Pepper Finance Corporation
(Ireland) Limited to Pepper Finance
Corporation (Ireland) Designated Activity
Company.
Table 2.
3. The court recalls in this regard that s.63(12) of the Companies Act 2014 provides that re-
registration of an existing private company (which Pepper Finance Corporation (Ireland)
Limited clearly was) “shall [inter alia] not affect any rights or obligations of the company
or render defective any legal proceedings by or against the company….”
4. The Indenture of Mortgage when filed with the Land Registry was given Dealing Number
D2008WR009298C. Table 3 below shows the entries made in the relevant folio (Folio
23888F) with respect to this Dealing Number.
Folio 25388F
Dealing Number
D2008WR009298C
Court Comment
21.02.2008. Folio details
amended to show charge in
favour of GE Capital
Woodchester Limited
This involved a clerical error. The correct name of the
mortgagee was GE Capital Woodchester Home Loans
Limited.
27.02.2015. Folio details
amended to reflect that name
of mortgagee was GE Capital
Woodchester Home Loans
Limited.
Accompanying note states that this change was
effected pursuant to Rule 7(1) of the Land Registry
Rules. That rule provides that “[w]here a clerical error
is discovered in a register…the Authority may, after
giving any notices and obtaining any evidence or
assent that it may deem proper, make the necessary
correction”. The Egans indicate that they received no
notice of the name-change. The Land Registry is
entitled under its own rules to proceed without notice.
The court does not see what purpose would have
been served by giving notice of the trivial nature of
the change made, which is patently a clerical error.
Page 3 ⇓
Even if the court is wrong in this (and it does not
consider that it is), the Egans have suffered no
prejudice by virtue of the change.
Table 3.
5. It is worth recalling at this point that, pursuant to s.31(1) of the Registration of Title Act
1964, save in circumstances which do not present here, “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…”. The fact that
“conclusive” means well and truly conclusive, save as statute contemplates, has recently
paras. 57-58.
6. On 20.11.2018, the Circuit Court made an order for possession in favour of Pepper
Finance Corporation DAC. This is an appeal against that order. At hearing the court was
taken through the various proofs by counsel for Pepper Finance Corporation DAC. Those
proofs are entirely in order and the Circuit Court, which was possessed of the necessary
jurisdiction, was perfectly correct in issuing the order that it did.
7. The court notes in passing that para. 10 of the Special Indorsement of Claim of the Civil
Bill for Possession originally states as follows:
“These proceedings are commenced in the Circuit Court pursuant to section 3 of the
Land and Conveyancing Law Reform Act 2013 as they are proceedings brought by a
mortgagee seeking an order for possession of land which is the principal private
residence of – (a) the mortgagor of the land concerned, or (b) a person without
whose consent a conveyance of that land would be void by reason of – (i) the
Family Home Protection Act 1976, or (ii) the Civil Partnership and Certain Rights
and Obligations of Cohabitants Act 2010, and the mortgage concerned was created
prior to 1 December 2009”.
That paragraph was duly deleted by order of the Circuit Court of 20.11.2018 and the
following sentence inserted: “The market value of the Mortgaged Property does not
exceed €3,000,000.” No error presents in this regard.
8. The Egans have the sympathy of the court that a possession order should issue against
them. However, there is no doubt at law but that (i) Pepper Finance Corporation (Ireland)
DAC is entitled to that order, and (ii) the Circuit Court had the necessary jurisdiction, and
was correct, to issue such order.
Result: Judgment in favour of the plaintiffs.