McEnery v Sheahan [2019] IESC 64 (30 July 2019)

McEnery v Sheahan [2019] IESC 64 (30 July 2019)

The right of the bank to appoint a receiver under the 1881 Act, incorporated into the mortgage deed prior to the 2009 Act, survived the repeal by virtue of the Interpretation Act 2005. The subsequent registration of the charge related back to the date of application, validating the appointment. The bank did not act precipitously in appointing the receiver after demand, given the history of negotiations and default.

Citation
[2019] IESC 64
Parties
Plaintiff/respondent: Brian McEnery; Defendant/appellant: Tim Sheahan
Jurisdiction
Ireland
Judgment Date
30 July 2019
Procedural Posture
Civil Appeal / Supreme Court Final Judgment
Outcome
Appeal dismissed
Legal Topics
Appointment of Receiver, Effect of Statutory Repeal on Contractual Rights, Mortgage Enforcement, Interpretation of Repealing Statutes
Property Law Banking Law Appointment of Receiver Effect of Statutory Repeal on Contractual Rights Mortgage Enforcement Interpretation of Repealing Statutes

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 7 Party arguments 2 Amounts and remedies 7
Sign in to unlock

Parties

Brian McEnery

Plaintiff/respondent

Tim Sheahan

Defendant/appellant

Procedural Posture

Civil Appeal / Supreme Court Final Judgment

Legal Issues

  1. 1 Whether the repeal of the Conveyancing and Law of Property Act 1881 by the Land and Conveyancing Law Reform Act 2009 affected the right of a mortgagee to appoint a receiver under a pre-existing mortgage deed
  2. 2 Whether the non-registration of the bank's charge at the time of the receiver's appointment invalidated the appointment
  3. 3 Whether the bank acted precipitously in appointing a receiver immediately after demand for payment

Ratio Decidendi

The right of the bank to appoint a receiver under the 1881 Act, incorporated into the mortgage deed prior to the 2009 Act, survived the repeal by virtue of the Interpretation Act 2005. The subsequent registration of the charge related back to the date of application, validating the appointment. The bank did not act precipitously in appointing the receiver after demand, given the history of negotiations and default.

Court Disposition

Appeal dismissed

Orders

  • Declaration that the right to appoint a receiver under the 1881 Act was unaffected by the 2009 Act
  • Order requiring Mr. Sheahan to deliver up possession of the property to Mr. McEnery as receiver