THE SUPREME COURT
[Appeal No: 2014/286]
MacMenamin J. O'Malley J. Finlay Geoghegan J. Charles McGuinness and Noel Mulligan
Plaintiffs/Appellants
and
Ulster Bank Ireland Limited
Defendant/Respondent
Judgment of Ms. Justice Finlay Geoghegan delivered on the 28th day of March, 2019.
1. This appeal concerns the validity of the appointment of a Mr. David O'Connor as receiver ("the Receiver") over property charged by the plaintiffs and others to the defendant ("the Bank") by deed of mortgage and charge of 14 August 2006 ("the Deed of Charge").
2. In the High Court, Hogan J. determined that the Receiver was validly appointed, for the reasons set out in a judgment delivered on 27 May 2014: [2014] IEHC 281. He made a declaration to that effect in an order of 3 June 2014. It is from that order and judgment that the plaintiffs appealed. The appeal was transferred to the Court of Appeal pursuant to Article 64 of the Constitution in October 2014 and has recently reverted to this Court.
3. The plaintiffs appeared in person. The submissions at the hearing were made by Mr. McGuinness, the first named plaintiff, and Mr. Mulligan adopted the same. As appears from the issues considered below, the appeal raised quite technical legal issues and Mr. McGuinness, as a litigant in person, addressed these with considerable skill.
4. The issue before the High Court, and again before this Court, arises from the following facts which are not in dispute. Clause 9.1 of the Deed of Charge, made between the plaintiffs and others and the Bank, provided:-
"At any time after the Chargor so requests or the security hereby constituted becomes enforceable, the Bank may from time to time appoint under seal or under the hand of a duly authorised officer of the Bank any person or persons to be receiver and manager or receivers and managers…. of the Secured Assets"
5. By 27 January 2012, the security created by the Deed of Charge had become enforceable and by a deed of that date between the Bank and Mr. O'Connor ("the Deed of Appointment"), the Bank appointed him to be receiver and manager over the charged property. The Deed of Appointment was signed by a Mr. Michael McNaughton beside the following words as an attestation clause: "SIGNED AND DELIVERED BY MICHAEL MCNAUGHTON for and on behalf of and as the deed of ULSTER BANK IRELAND LIMITED under Power of Attorney dated 13th April 2011 which has not been revoked, in the presence of Steven Williams."
Mr. Williams also signed, giving his occupation as bank official and his address as Ulster Bank, Georges Quay, Dublin 2. No seal was affixed to the document.
6. By a deed of power of attorney made on 13 April 2011 ("the Power of Attorney") the Bank had appointed Mr. McNaughton and other named people to be "our Attorneys and we give and grant full powers, warrant and authority to our Attorneys for us and in our name and on our behalf to sign or otherwise execute and deliver the following documents, videlicet ". The documents identified in the Power of Attorney include at para. 4, "such… deeds of appointment… as may be required in connection with… receiverships…". The Power of Attorney was executed by affixing the common seal of the Bank in the presence of two authorised signatories who signed the document. There is no challenge to the validity of the Power of Attorney.
7. The contention of the plaintiffs is that the appointment of the Receiver has not been made in accordance with Clause 9.1 of the Deed of Charge. They submit that Clause 9.1 permits the appointment by the Bank to be made by a document either signed by an authorised officer of the Bank or executed under seal. They contend that Mr. McNaughton did not sign as an authorised officer of the Bank. They also contend that the Deed of Appointment was not executed under seal. They rely upon the decision of Gilligan J. in Re Belohn Limited (No.1) [2013] IEHC 130, [2013] 2 ILRM 388 to submit that as the appointment of the Receiver does not comply with the contractual requirement, it is fatal to the validity of the appointment.
8. The plaintiffs also contend that as the Deed of Appointment is made by the Bank, which is a company registered in the State, in accordance with s. 64(2)(b)(ii) of the Land and Conveyancing Law Reform Act 2009 ("the 2009 Act"), to be a deed, it must be executed under the seal of the Bank in accordance with its Articles of Association.
9. The Bank accepts that the appointment of the Receiver must be in accordance with Clause 9.1 of the Deed of Charge. Whilst attention was drawn to Clause 9.2, counsel on its behalf stated that it was not relying on Clause 9.2 of the Deed of Charge. The Bank does not contend that it established that Mr. McNaughton executed the Deed of Appointment as a "duly authorised officer of the Bank". The Bank contends that, in accordance with the Power of Attorney, s. 17 of the Powers of Attorney Act 1996 ("the 1996 Act") and s. 64(2)(b)(i) and s. 64(3) of the 2009 Act, the signature of Mr. McNaughton as the donee of the power of attorney on the Deed of Appointment constitutes valid execution of it as the deed of the Bank, and hence it has effect as if it were a document executed under seal.
10. To consider those opposing submissions, it is necessary to set out the relevant statutory provisions.
11. Section 17(1) of the 1996 Act provides that:-
by the authority of the donor of the power; and any instrument executed or thing done in that manner shall be as effective as if executed or done by the donee with the signature and seal, or, as the case may be, in the name, of the donor of the power."
12. Section 3 of the 2009 Act defines a deed as having "the meaning given to it by section 64(2)";
13. Section 64 of the 2009 Act provides:
Discussion and Decision 14. The core of the dispute between Mr. McGuinness and the Bank is whether the Deed of Appointment, which is the deed of the Bank, is considered to have been "made" by the Bank or by Mr. McNaughton, who is an individual for the purposes of s. 64(2)(b) of the 2009 Act.
15. The importance of this arises in the following manner. If it is to be considered as a deed made by the Bank then, in accordance with s. 64(2)(b)(ii), it must be executed under the seal of the Bank in accordance with its Articles of Association in order to be a deed executed under s. 64 and, pursuant to s. 64(3), to have effect "as if it were a document executed under seal".
16. If, on the other hand, as contended by the Bank, the Deed of Appointment was "made" by Mr. McNaughton pursuant to the Power of Attorney and hence, by an individual, then his witnessed signature is sufficient execution under the section in accordance with s. 64(2)(b)(i)(I) and hence it has effect "as if it were a document executed under seal", in accordance with s. 64(3).
17. To resolve this core dispute, it is necessary to consider the structure of s. 64(2) of the 2009 Act. It is a subsection directed to determining when a document may be considered to be a deed and take effect as if it were a document executed under seal. It provides that the document is to be a deed where it complies with sub-paras. (a), (b) and (c). The requirement of para. (a) is directed to the form of the document such that it makes clear "on its face that it is intended by the person making it or the parties to it to be a deed by expressing it to be executed or signed as a deed". It is not in dispute that the Deed of Appointment meets this requirement. However, it appears to me important in construing the disputed requirement in para. (b), that para. (a) identifies as two potentially separate persons, the person making the document and the parties to the document. It therefore envisages that for the purposes of the section, a deed may be "made" by a person who is not a party to the deed.
18. Paragraph (c) of s. 64(2) requires the document to be delivered as a deed either by the person executing it or by a person authorised to do so on that person's behalf. It is not in dispute that Mr. McNaughton executed the Deed of Appointment and delivered it as a deed.
19. Returning then to para. (b) of s. 64(2), it specifies how the document must be executed, in order to meet the requirements of s. 64(2) to be a deed. It identifies different requirements where the document is "made" by an individual and by companies and other bodies corporate. The question is to whom the Oireachtas is referring by using the word "made" in subss. 64(2)(b)(i), (ii) and (iii)? In relation to the execution of a document, the only potential persons appear to be either the party whose deed it is or, where that party does not execute the document, the person who on that party's behalf executes the document.
20. The starting point of any construction of an Act of the Oireachtas is of course a consideration of the plain meaning of the words used: Howard v. Commissioners of Public Works [1994] 1 I.R. 101. However, the construction must also be, as was put by the Supreme Court per McGuinness J. in Fuller v. Minister for Agriculture [2005] 1 IR 529 at p. 548, "in the contextual light of the surrounding provisions of the statute". It is also presumed that words are not used in a statute without a meaning and, accordingly, effect must be given, if possible, to all the words used: Goulding Chemicals Ltd. v. Bolger [1977] I.R. 211, O'Higgins C.J. at p. 223. The Court, in construing the provision, must have regard to the use of different words, here "executed" and "made", which may indicate an intention of a different meaning.
21. Section 64(2)(b) of the 2009 Act is directed to the execution of the document in question and must be considered in the context of s. 64(2) and the entirety of section 64 of the 2009 Act. As already pointed out, s.64(2)(a) has differentiated between the person making the document and the parties to it. There will, of course, only be a potential difference between a party and the person making the document where the party does not execute the document. This may most commonly arise where, as here, a party to the document has authorised another person by a power of attorney to execute documents on its behalf. In the context of this subsection directed to the execution of documents, notwithstanding the use of the word "made" and also the word "executed" in the same subsection, I have concluded that that the words "made by" used in s. 64(2)(b) are intended to refer to the person who executes the document. It specifies how that person must execute the document if it is to be considered a deed. Also, the making of a document requires an active step and it is not considered "made" until executed. Thus, whilst the Oireachtas has used the different word "made" rather than "executed", the context in which the word "made" is used is such that it means the person who is actively making the document in the sense of executing the document, rather than a party to the document who is not executing the document.
22. Hence, I have concluded that where, as here, the Bank has lawfully appointed an individual, Mr. McNaughton, to execute documents, including a deed of appointment of a receiver on its behalf, then as the person who executes the document, he is the person who makes the document for the purposes of s. 64(2)(b) of the 2009 Act. On the undisputed facts of this appeal, Mr. McNaughton held a valid power of attorney which authorised him in the name of the Bank and on its behalf to execute and deliver inter alia deeds of appointment in connection with receiverships.
23. As Mr. McNaughton was the person executing the deed to which the Bank was a party on its behalf, he was the person making the deed within the meaning of s. 64(2)(b)(i) and since he is an individual, his signature in the presence of a witness who attested his signature was a sufficient compliance with s. 64(2)(b)(i)(I). It follows from that conclusion (and compliance with sub-ss.64(2)(a) and (c)) that the Deed of Appointment is a deed within the meaning of s. 64 of the 2009 Act. Further, that it is executed in accordance with s. 64(2) and hence, pursuant to s. 64(3), it "has effect as if it were a document executed under seal". Consequently, that the Deed of Appointment complied with Clause 9.1 of the Deed of Charge and is a valid appointment.
24. Whilst counsel for the Bank also relied upon s. 17 of the 1996 Act, it is not necessary to consider its impact on the matters in dispute by reason of the conclusion which I have reached on the meaning of s. 64(2)(b) of the 2009 Act.
Conclusion
25. My conclusion, for the reasons set out in this judgment, is that the Deed of Appointment by which the Bank appointed Mr. O'Connor as receiver, which was signed but not sealed by Mr. McNaughton pursuant to the Power of Attorney and whose signature was witnessed, was a document made by Mr McNaughton, an individual, within the meaning of s. 64(2)(b) of the Land and Conveyancing Law Reform Act 2009 and a deed within the meaning of s. 64 which takes effect as if it were a document under seal pursuant to s. 64(3) of the 2009 Act. Hence, the Bank validly appointed Mr. O'Connor as receiver in compliance with the requirements of Clause 9.1 of the Deed of Charge. It follows that the appeal must be dismissed.
