Promontoria (Oyster) DAC v Fox & Anor (Unapproved) [2023] IECA 76 (31 March 2023)

Promontoria (Oyster) DAC v Fox & Anor (Unapproved) [2023] IECA 76 (31 March 2023)

Liens registered as burdens under s.73 of the 2006 Act, if properly registered before the statutory deadline, retain their character and can secure further advances made after 31 December 2009, provided the parties so agree; there is no statutory impediment in s.73 or the 1964 Act preventing this. The High Court erred in holding otherwise.

Citation
[2023] IECA 76
Parties
Plaintiff/appellant: Promontoria (Oyster) Designated Activity Company; Defendant/respondent: John Fox; Defendant/respondent: Tomas Lynn
Jurisdiction
Ireland
Judgment Date
31 March 2023
Procedural Posture
Civil Appeal / Court of Appeal Judgment on Appeal From High Court
Outcome
Appeals allowed; High Court judgment set aside.
Legal Topics
Registered Liens, Well Charging Orders, Security for Advances, Section 73 Registration of Deeds and Title Act 2006, Equitable Mortgages, Land Certificates, Registered Burdens
Property Law Banking Law Land Registration Registered Liens Well Charging Orders Security for Advances Section 73 Registration of Deeds and Title Act 2006 Equitable Mortgages +2 more

Case Brief

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Parties

Promontoria (Oyster) Designated Activity Company

Plaintiff/appellant

John Fox

Defendant/respondent

Tomas Lynn

Defendant/respondent

Procedural Posture

Civil Appeal / Court of Appeal Judgment on Appeal From High Court

Legal Issues

  1. 1 Whether liens registered pursuant to s.73 of the Registration of Deeds and Title Act 2006 can secure loan agreements or advances made after 31 December 2009
  2. 2 Whether the import of s.73 is that any such interests can now only be registered by way of charge

Ratio Decidendi

Liens registered as burdens under s.73 of the 2006 Act, if properly registered before the statutory deadline, retain their character and can secure further advances made after 31 December 2009, provided the parties so agree; there is no statutory impediment in s.73 or the 1964 Act preventing this. The High Court erred in holding otherwise.

Court Disposition

Appeals allowed; High Court judgment set aside.

Orders

  • Appellant entitled to costs of both appeals, subject to submissions by respondents within 14 days if they seek an alternative order.