McEnery -v- Sheahan [2012] IEHC 331 (30 July 2012)

McEnery -v- Sheahan [2012] IEHC 331 (30 July 2012)

The statutory right to appoint a receiver under s. 19 of the Conveyancing and Law of Property Act 1881 was acquired at the time of the mortgage's creation and preserved by s. 27(1)(c) of the Interpretation Act 2005. The repeal of the 1881 Act by the 2009 Act did not abrogate this right for mortgages executed prior to December 2009. Registration of the charge, though completed after the receiver's appointment, was effective from the date of application, validating the receiver's appointment. The demand for repayment was reasonable given extensive prior negotiations. The plaintiff is entitled to possession and declaratory relief; the defendant's counterclaim is dismissed.

Citation
[2012] IEHC 331
Parties
Plaintiff: Brian McEnery; Defendant: Tim Sheahan
Jurisdiction
Ireland
Judgment Date
30 July 2012
Procedural Posture
Plenary Summons / Final Judgment
Outcome
Plaintiff's claim granted; defendant's counterclaim dismissed.
Legal Topics
Mortgage Enforcement, Appointment of Receiver, Statutory Repeal, Interpretation Act, Land and Conveyancing Law Reform Act
Property Law Banking Law Statutory Interpretation Mortgage Enforcement Appointment of Receiver Statutory Repeal Interpretation Act Land and Conveyancing Law Reform Act

Case Brief

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Parties

Brian McEnery

Plaintiff

Tim Sheahan

Defendant

Procedural Posture

Plenary Summons / Final Judgment

Legal Issues

  1. 1 Whether Ulster Bank had power to appoint a receiver under a mortgage deed executed prior to the Land and Conveyancing Law Reform Act 2009
  2. 2 Effect of repeal of Conveyancing and Law of Property Act 1881 on mortgagee's rights
  3. 3 Impact of non-registration of charge on receiver's appointment

Ratio Decidendi

The statutory right to appoint a receiver under s. 19 of the Conveyancing and Law of Property Act 1881 was acquired at the time of the mortgage's creation and preserved by s. 27(1)(c) of the Interpretation Act 2005. The repeal of the 1881 Act by the 2009 Act did not abrogate this right for mortgages executed prior to December 2009. Registration of the charge, though completed after the receiver's appointment, was effective from the date of application, validating the receiver's appointment. The demand for repayment was reasonable given extensive prior negotiations. The plaintiff is entitled to possession and declaratory relief; the defendant's counterclaim is dismissed.

Court Disposition

Plaintiff's claim granted; defendant's counterclaim dismissed.

Orders

  • Declaration that Ulster Bank's right to appoint a receiver under the 1881 Act is preserved by the Interpretation Act 2005 and unaffected by the 2009 Act.
  • Order compelling defendant to deliver up possession of the property.