Mars Capital Finance Ireland DAC v Gibney & Anor (Approved) [2023] IEHC 462 (28 July 2023)

Mars Capital Finance Ireland DAC v Gibney & Anor (Approved) [2023] IEHC 462 (28 July 2023)

The respondent, as the registered owner of the charge under s.31 of the Registration of Title Act 1964, is entitled to possession. Clause 18 of the mortgage deed is irrelevant to the transfer of the mortgagee's interest and does not require two signatures for valid transfer. The court cannot go behind the Register absent fraud or mistake.

Citation
[2023] IEHC 462
Parties
Plaintiff/respondent: Mars Capital Finance Ireland DAC; Defendant/appellant: Damian Gibney; Defendant/appellant: Irene Gibney
Jurisdiction
Ireland
Judgment Date
28 July 2023
Procedural Posture
Circuit Appeal (possession Proceedings) / High Court Appeal Judgment
Outcome
Defendants' appeal dismissed; Circuit Court order affirmed.
Legal Topics
Mortgage Possession, Assignment of Mortgage, Registration of Title, Unfair Contract Terms
Property Law Banking Law Consumer Protection Mortgage Possession Assignment of Mortgage Registration of Title Unfair Contract Terms

Case Brief

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Parties

Mars Capital Finance Ireland DAC

Plaintiff/respondent

Damian Gibney

Defendant/appellant

Irene Gibney

Defendant/appellant

Procedural Posture

Circuit Appeal (possession Proceedings) / High Court Appeal Judgment

Legal Issues

  1. 1 Whether the transfer of the mortgage charge from the original lender to assignees was valid under the mortgage deed
  2. 2 Whether clause 18 of the mortgage deed required two signatures for valid transfer
  3. 3 Whether clause 18 constituted an unfair contract term under the Unfair Terms in Consumer Contracts Regulations 1995

Ratio Decidendi

The respondent, as the registered owner of the charge under s.31 of the Registration of Title Act 1964, is entitled to possession. Clause 18 of the mortgage deed is irrelevant to the transfer of the mortgagee's interest and does not require two signatures for valid transfer. The court cannot go behind the Register absent fraud or mistake.

Court Disposition

Defendants' appeal dismissed; Circuit Court order affirmed.

Orders

  • Order for possession of property in favour of respondent affirmed.
  • Stay on execution of possession order extended until final orders are made.