Promontoria (Oyster) Designated Activity Company & Anor v Fox; Promontoria (Oyster) Designated Activity Company & Anor v Kean (Approved) [2025] IESC 23 (03 June 2025)

[ Home ] [ Databases ] [ World Law ] [ Multidatabase Search ] [ Help ] [ Feedback ] [ DONATE ] Supreme Court of Ireland Decisions You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Promontoria (Oyster) Designated Activity Company & Anor v Fox; Promontoria (Oyster) Designated Activity Company & Anor v Kean (Approved) [2025] IESC 23 (03 June 2025) URL: https://www.bailii.org/ie/cases/IESC/2025/2025IESC23.html Cite as: [2025] IESC 23 [ New search ] [ Printable PDF version ] [ Help ] AN CHÚIRT UACHTARACH THE SUPREME COURT [2025] IESC 23 O'Donnell CJ. O'Malley J. Woulfe J. Hogan J. Donnelly J. Record No: S:AP:IE:2024:000058 Between/ Promontoria (Oyster) DAC Appellant AND John Fox Respondent - and - Record No: S:AP:IE:2024:000083 Between/ Promontoria (Oyster) DAC Appellant AND Michael Kean Respondent JUDGMENT of Ms. Justice Donnelly dated the 3 rd day of June 2025. 1. May a lien registered pursuant to section 73 of the Registration of Deeds and Title Act, 2006 be relied on as security for loans advanced after the expiry of the three-year transition period for the registration of liens on 31 December 2009? That is the common issue in both these appeals. The appeal in Promontoria (Oyster) DAC v Kean (" Kean "), also asks whether Promontoria (Oyster) Designated Activity Company ("Promontoria") can rely upon the argument that there was a form of contractual promise giving rise to an equitable charge on Mr Kean's land which provides sufficient basis for a well-charging order. 2. Section 73 of the Registration of Deeds and Title Act, 2006 ("the 2006 Act") altered the previous scheme/practice whereby security could be created and maintained over registered lands through the deposit of a land certificate with - and the retention by - the person to whom the loans were owed. The 2006 Act brought that scheme to an end by providing that land certificates or certificates of charge would no longer be issued and those that had previously been issued would cease to have any legal effect after the end of a three-year transition period on 31 December 2009. Crucially however, the legislation provided that during the three-year transition period any security which had been created or maintained in this way could be registered (and deemed to be a burden affecting the land pursuant to s. 69 of the Registration of Title Act, 1964) on the relevant folio thus preserving the interest of the holder of the existing lien by deposit after the certificate ceased to have effect. The extent of the interest thus preserved is at issue in these appeals. 3. The High Court refused well-charging orders sought by Promontoria over lands owned by Mr Fox ( [2022] IEHC 97 ) and Mr Kean ( [2022] IEHC 526 ) respectively. Promontoria initiated an appeal in each of those proceedings to the Court of Appeal which in turn set aside both judgments of the High Court. The analysis of the High Court and the Court of Appeal will be examined below. Legislative Overview 4. The well-established practice of creating equitable mortgages over unregistered land by deposit of title deeds naturally could not apply to registered land. The then newly introduced system of land registration in Ireland - the Local Registration of Title (Ireland) Act, 1891 ("the 1891 Act") - made provision for the equivalent type of equitable mortgage to be recognised (or, as can be debated, 'created') in respect of registered land by the deposit of the land certificate or certificate of charge. This deposit would "have the same effect as a deposit of the title deeds of unregistered land or of a charge thereon". 5. Section 81 of the 1891 Act was replicated in s. 105 of the Registration of Title Act, 1964 ("the 1964 Act") ('Registrar' replaced 'registering authority' and in turn the 2006 Act replaced all references to 'Registrar' in the 1964 Act with 'Authority' i.e. the Property Registration Authority). Section 105 provided: "105.—(1) Subject to general rules, the land certificate or certificate of charge granted on the registration of an owner of land, or of a charge on land, shall be produced to the Registrar on any subsequent transaction in relation to the land or charge requiring registration, as the case may be, and shall be either cancelled or so altered as to be brought into conformity with the register. (2) Subject to general rules, the Registrar may, on the application of the registered owner, or of any person appearing to the Registrar to be entitled to require the production of a land certificate or certificate of charge, order any person in whose custody the certificate may be to produce the certificate to the Registrar for the purpose of any dealing with the registered land or charge which can be effected without the consent of the person having the custody of the certificate. (3) The production of a certificate under this section shall not alter the right to the custody of the certificate, and shall not affect any lien of any person thereon. (4) A land certificate or certificate of charge shall be prima facie evidence of the several matters therein contained. (5) Subject to any registered rights, the deposit of a land certificate or certificate of charge shall, for the purpose of creating a lien on the land or charge to which the certificate relates, have the same effect as a deposit of the title deeds of unregistered land or of a charge thereon." 6. From 1891 onwards, as production of the land certificate to the registering authority/Registrar was necessary for the registration of any new interest on land, the deposit of the land certificate amounted to good security against other interests being created on the land. With the abolition of land certificates and certificates of charge by the 2006 Act, no new equitable mortgages could be created by deposit after the transition period because land certificates and certificates of charge could no longer be issued and the existing certificates would have no value at the end of that period. The 2006 Act made certain transitional provisions for existing deposits of land certificates and certificates of charge. 7. Section 73 of the 2006 Act provides as follows: "73.—(1) The Authority shall cease to issue land certificates and certificates of charge under the Act of 1964, and accordingly— (a) sections 28, 32(2), 32(3), 51(3), 51(4), 62(5) and 64(3) of that Act are repealed, and (b) section 105 (certificates) thereof— (i) applies only in relation to land certificates and certificates of charge issued before the commencement of this subsection and not already cancelled, and (ii) ceases to have effect 3 years after the commencement of subsection (2). (2) Subject to subsection (3), land certificates and certificates of charge issued before the commencement of subsection (1) and not already cancelled cease to have any force or effect on the expiration of the period of 3 years after the commencement of this subsection. (3) The following provisions have effect during the period referred to in subsection (2): (a) the Authority shall cause adequate notice to be published of the coming into operation of subsection (2) and of its implications for persons to whom land certificates or certificates of charge have been issued and for any others who may be affected, including persons holding a lien on registered land or a registered charge through deposit or possession of those certificates; (b) a holder of such a lien may apply to the Authority for registration of the lien in such manner as the Authority may determine; (c) the application shall be on notice by the applicant to the registered owner of the land or charge and be accompanied by the certificate concerned; (d) the lien is deemed for the purposes of section 69 of the 1964 Act to be a burden which may be registered as affecting registered land; (e) the Authority shall register the lien without charging any fee or duty for doing so. (4) Notwithstanding subsection (2), where the holder of a lien has suffered loss by reason of not having applied to the Authority during the period referred to in subsection (3) for registration of the lien as a burden affecting the registered land, the holder may apply to the court for compensation for the loss, on notice to the Minister for Finance. ..." 8. The reference to 'the Authority' in s. 73 was to the Property Registration Authority but since its dissolution pursuant to the Tailte Éireann Act, 2022 all such references are to Tailte Éireann. 9. Section 69(1) of the 1964 Act provides that "[t]here may be registered as affecting registered land any of the following burdens, namely ... [list omitted]". The appellants also relied upon the following provisions of the 1964 Act: "74.—Subject to any entry to the contrary on the register, burdens which are registered as affecting the same land, and which if unregistered would rank in priority according to the date of their creation, shall, if created or arising since the first registration of the land, rank according to the order in which they are entered on the register and not according to the order in which they are created or arise, and shall rank in priority to any other burden affecting the land and created or arising since the first registration of the land, not being a burden to which, though not registered, the land is subject under section 72." 75.—(1) Where a registered charge is expressed to be created on any land for the purpose of securing future advances (whether with or without present advances), the registered owner of the charge shall be entitled in priority to any subsequent charge to the payment of any sum due to him in respect of such future advances, except any advances which may have been made after the date of, and with express notice in writing of, the subsequent charge. (2) In this section 'future advances' includes sums from time to time due on an account current, and all sums which by agreement or the course of business between the parties are considered to be advances on the security of the charge." The High Court judgments in Fox and Kean Fox [2022] IEHC 97 10. The relevant lands at the centre of the Fox proceedings in Co. Westmeath were registered in Mr Fox's name pursuant to the 1964 Act. A lien in favour of Ulster Bank was registered as a burden on the same folio pursuant to s. 73(3) of the 2006 Act on 19 March 2009. Promontoria subsequently acquired the bank's interest in the registered lien and this was noted on the folio on 9 March 2017. Promontoria sought to enforce their security when Mr Fox defaulted on loans advanced in 2010 i.e. after the end of the transition period, using the registered lien. Thus, the question for the High Court was whether the lien was capable of securing loans taken out after the transition period had expired, thereby permitting Promontoria to rely on the lien in an application for a well-charging order. 11. The trial judge considered two relevant cases dealing with s. 73 of the 2006 Act. He addressed the judgments of Clarke CJ. and Dunne J. in Promontoria (Oyster) DAC v Hannon [2020] 1 IR 364 , [2019] IESC 49 (" Hannon ") and the judgment of Collins J. in the Court of Appeal in Promontoria (Oyster) DAC v Greene [2024] 1 IR 286, [2021] IECA 93 (" Greene "). Noting that s. 73 was silent as to whether a lender could rely on a registered lien as security for advances made after 31 December 2009, the trial judge considered the overall scheme of the legislation. He attached significance to the fact that s. 73 provided for the conversion of a lender's former equitable interest into a "lien" rather than a "charge". The creation of a charge was, in his view, the primary means by which a debt was to be secured against registered land. While the Oireachtas had intended that there should be a mechanism whereby the existing rights of the holder of a lien by deposit would be protected, it was sufficient for that purpose that the lien covered the principal debt due at registration (together with interest) and that any further loans could be secured by way of a registered charge. The trial judge considered that interpretation of s. 73 to accord with the policy underlying the modern land registration system. 12. In the trial judge's view, Promontoria's case, which required that a registered lien be treated as the functional equivalent of a registered charge, could not be reconciled with the legislative policy underpinning s. 73. He held that a lien registered pursuant to s. 73 of the Act cannot be relied upon as security in respect of a further loan agreement that was entered into after 31 December 2009. He therefore refused the application for a well-charging order. Kean [2022] IEHC 526 13. Mr Kean is the registered owner of the lands in Co. Roscommon on which a lien was entered on the folio pursuant to s. 73(3) of the 2006 Act in favour of Ulster Bank. The registered lien was dated 31 December 2009. Mr Kean had deposited the land certificate for his folio with Ulster Bank in 2005 as security for borrowed monies. In 2012, Ulster Bank granted additional loans to Mr Kean purportedly secured by the same lands. The third of those loans, a facility in the amount of €165,000 stated that the "Security Held" was the "[l]ien registered over 77 acres of Land at Ballinlough, Co. Roscommon, land cert folio no [cited in original]". The folio number was incorrectly recorded in the original loan offer. Ulster Bank, in December 2016, transferred the entirety of its interest in Mr Kean's lands to Promontoria, who applied for a well-charging order in 2019 in relation to the loans on which Mr Kean had defaulted. 14. There are some ostensibly relevant differences of fact between the two cases. In Kean , there was documentary evidence suggestive of support for the contention that there was agreement at the time of the deposit of the land certificate that it would form security for any future advances. Mr Kean also challenged the registration on the lien claiming that it had not been registered on time. He also claimed that the lien (if registered) did not provide security for two of the three loans at issue. 15. The trial judge relied on his earlier judgment in Fox. He also held that the gravamen of an argument that an agreement to provide security represents a "separate route" to the creation of an equitable mortgage which is distinct from the deposit of the land certificate was that "the intention of the parties should be treated as bringing about the very thing which the legislation has abolished". He held that the equitable mortgage created by the deposit was subsequently extinguished by the operation of the 2006 Act. He therefore rejected any suggestion that an equitable remedy could exist independently of the equitable mortgage which upon his construction of s. 73 had been extinguished after 31 December 2009. He con cluded that the circumstances in Kean were indistinguishable from those in Fox and refused the application for a well-charging order. Judgments of the Court of Appeal: 16. On appeal by Promontoria, the Court of Appeal's analysis also centred on the cases of Hannon and Greene . These cases will be discussed later in this judgment. Fox [2023] IECA 76 17. In Fox , the Court of Appeal (at paras [50]-[51]) identified two interlinked propositions for consideration: a) Whether liens registered pursuant to s. 73 of the 2006 Act can secure loan agreements or advances made after 31 December 2009; and b) whether the import of s. 73 is that any such interests can now only be registered by way of charge. 18. The Court of Appeal (Pilkington J. with whom Costello and Butler JJ. agreed) accepted that Hannon and Greene identified the general intention of the 2006 Act as a move towards a system of universal land registration. Pilkington J. quoted Deeney, Registration of Deeds and Title in Ireland (Bloomsbury Professional 2014) with apparent approval, to the effect that the "concept of hidden equitable interests was inconsistent with the objective of a transparent land register for purchasers". On the other hand, she acknowledged the point made by Clarke CJ. in Hannon that other unregistered interests can affect registered land. Pilkington J. said that many interests in land, in particular equitable interests, are recognised in law but are not expressly dealt with by statute. The importance of looking to s. 73 for guidance for the role and function of the lien was emphasised. 19. Pilkington J. held that regard could be had to the interest which existed prior to the enactment of s. 73; the whole purpose of s. 73 was to provide a mechanism for the continuance of existing liens created by deposit of the land certificate or the certificate of charge. She said it was: "... clear from the language of the provisions of s. 73(2)(b) ('a holder of such a lien may apply to the Authority for registration of the lien in such manner.....') (my emphasis) that this must be a reference to the previous interest held prior to its registration". 20. Placing reliance on the dicta in Bank of Ireland v Purcell [1989] IR 327 that "each time a further advance is made the interest in the property which is being charged is altered", Pilkington J. said "[i]t is not that each new advance on a current account amounts to a new security. It is the same security but securing different amounts". Secondly, she held that the reference to a lien is not new but rather a continuation of the references to it within ss. 81(3) and (5) of the 1891 Act and ss. 105(3) and (5) of the 1964 Act which make reference to the existence of a lien, which is then of course also referenced within s. 73 itself. 21. The nature of the interest is as stated by Kenny J. in AIB v Glynn [1973] IR 188 at p. 192 that "[t]he right created by the deposit is not limited to keeping the deeds until the money has been paid but gives an equitable estate in the lands". So, Pilkington J. held "... rather than [a creditor] relying on possession of a certificate of charge or land certificate (both of which now cease to have effect [after 31 December 2009]) as evidence of their lien [as a secured interest], s. 73 introduced a simple device of requiring the registration of the (pre-existing) lien as a burden [on the folio] pursuant to s. 69 of the1964 Act". She observed that nothing in Hannon or Greene suggested anything to the contrary. Section 73 created a time limit in which existing liens may be registered and that no new liens may be created after 31 December 2009. It was those two changes which must be notified to the holders of existing liens and they were so notified. If it was also intended that they could no longer rely on existing liens to secure future advances, as had been the law heretofore, then notice of this would also have to be given in respect of this reduction in their rights. 22. Having found that nothing in s. 73 suggested that the essential characteristics of such liens altered on registration or that the rights and entitlements of the lienholder were reduced, the Court of Appeal found that such liens were capable of securing future loans or advances where so agreed by the relevant parties. Kean [2023] IECA 181 23. The Court of Appeal saw no reason to depart from its reasoning in the Fox decision. 24. The Court identified the second issue (the Kean point) as: Whether security, which is sufficient to ground well-charging relief, arises, or could arise, by any contractual mechanism distinct from the lien registered on the folio? Pilkington J., with whose judgment the other members of the Court agreed, reiterated that it had been agreed that it was not for that Court to determine whether on the facts of this case a contractual promise was made out; that would be a matter for the trial judge who considers the well-charging proceedings. It was agreed that on the facts of this case, issue was taken by Mr Kean as to whether the terms of the facility letter, properly construed, provided that the monies secured by the lien covered the entirety of the loan facilities. If that argument is upheld, the question then was whether the alternative argument set out above is available to Promontoria? Alternatively phrased, the question is whether an action may lie in the enforcement of an equitable charge. The Court of Appeal viewed that question as whether there was an entitlement to seek equitable relief. 25. The Court of Appeal relied upon Megarry and Wade, The Law of Real Property (8th edn, Sweet & Maxwell 2012) and McMahon J. in Bank of Ireland Finance Ltd v Daly [1978] IR 79 (" Bank of Ireland v Daly ") in holding that an agreement, however informal, can attract equitable relief. Promontoria was successful in arguing that they were entitled to advance an argument that a mechanism distinct from a lien registered on the folio could be sufficient to ground an application for a well-charging order where the parties had so agreed. 26. Overturning the High Court, the Court of Appeal concluded that existing liens registered pursuant to s. 73 of the 2006 Act are capable of acting as security for loans advanced after 31 December 2009 where so agreed by the parties. The Court of Appeal added that Promontoria is entitled to argue for the enforcement of an equitable charge in proceedings seeking a well-charging order. Issues 27. The two issues in these appeals will be addressed separately: the issue common to both will be called the Fox point and other issue will be referred to as the Kean point. Counsel for all three parties made extremely helpful oral and written submissions. The Fox point 28. To recap, this point asks whether a lien, registered pursuant to s. 73(3) on or before 31 December 2009 (the end of the three-year period for the registration of liens by deposit) can secure loans advanced after that date. Appellant's Submissions - Mr Fox 29. Counsel for Mr Fox makes four core submissions: a) An equitable mortgage created by the deposit of a land certificate was qualitatively different to a statutory lien created by registration in accordance with s. 73. b) The enactment of s. 73 of the 2006 Act heralded a significant reform of the conveyancing of registered land and a substantial restriction in the means through which land could be incumbered to secure borrowings, reflecting the clear intention of the Oireachtas that at the expiration of the transition period, the only remaining method of securing borrowings on registered land is by way of a charge. c) A lien created pursuant to s. 73 of the 2006 Act does not, impliedly or expressly, empower the lienholder to rely on same as security for future loans; and d) In the context of significant reforms, the Oireachtas sought to preserve the rights of equitable mortgagees through the registration of the security held for monies lent and permitted the securing of future advances by way of a charge, resulting in a limited interference with mortgagees' property rights (in line with the overall policy of law reform to affect mortgagees' rights as little as possible). 30. I address the detail of these submissions below. As a general submission, counsel said that s. 73 of the 2006 Act introduced two major reforms: first, that it replaced the all-powerful equitable mortgage with a mere burden, a significant but proportionate attenuation of a lienholder's rights, and second, the only way to effectually secure borrowings on registered land post-2009 is by way of a charge. 31. Prior to the 2006 Act, loans could be secured on registered land in a number of ways, including, as found in Bank of Ireland v Purcell , that the parties may agree at the time of depositing the land certificate that it could secure present and future advances. In the present case, the register conclusively establishes Promontoria's interest in the lien. There is, moreover, no evidence that the lien was registered following the deposit of a land certificate for present and future advances. The onus was on the mortgagee to prove the terms, citing Greene at paras [33]-[35]. Counsel submitted that the nature and extent of the lien has not been proved, and thus, there is nothing express or implied in the 2006 Act or the statutory lien as registered which entitles the lienholder to rely on same as security for advances made after the registration of the lien. Appellant's Submissions - Mr Kean 32. Counsel for Mr Kean adopted the submissions made in the Fox case and made supplemental submissions of his own. Counsel submitted that there were significant differences between a lien by deposit and a registered lien, highlighting that a deposit of a land certificate was an anomaly in the context of registered land. The failure of Ulster Bank to secure the post-2009 lending by way of a charge resulted in the present attempt to put a strained interpretation on s. 73 to base the claim for well-charging relief. 33. The Court of Appeal erred, according to counsel, in viewing the security held prior to the enactment of the 2006 Act as the same security the Bank purported to hold at the time of the post-2009 lending; the lien created by deposit was capable of securing present and future lending, whereas the statutory lien registered was not so capable. In support, counsel cited para [29] of the High Court decision in Fox to the effect that the equitable interest no longer exists but has been converted to a registered lien. Counsel submitted that the scheme introduced by s. 73 of the 2006 Act provides for the creation of a registered lien which, as found by the trial judge in Fox at para [32], "represents a lesser form of security which had been put in place to protect the existing property rights of the holders of liens by deposit". Respondent's Submissions 34. As a general proposition, counsel for Promontoria submitted that the lien created by deposit of the land certificate had certain characteristics - which will be discussed later - which gave rise to certain entitlements which were unaffected by the s. 73 registration in the absence of anything to the contrary. A deposit of the land certificate created an equitable estate in land. It was a lien on the land and not just on the certificate (see Collins J. in Greene at para [29] citing Kenny J. in Allied Irish Banks v Glynn and para [30]). Promontoria asked two questions (and answered them in the negative) about the effect of the 2006 Act on pre-existing liens by deposit: a) Is there any reason to deprive these liens of their ability to secure future advances; or, b) Does the disappearance of the physical land certificate make it impossible for these liens to retain their ability to secure future advances? 35. Promontoria agreed with the Court of Appeal that the starting point for ascertaining the powers exercisable by the holder of a registered lien is to examine the lien by deposit that was there beforehand, in accordance with the plain wording of s. 73(3) of the 2006 Act. Promontoria submitted that while s. 73 clearly intends to abolish land certificates in a significant reform of the law, the legislation mandates only those differences which are strictly necessary and unavoidable to give effect to the abolition. There is no reason to imply any more differences or diminutions and there are very good reasons not to, including textual fidelity, fairness and public reliance. 36. Counsel for Promontoria submitted that prior to 2006 the question of whether a debt was secured by the lien created by the deposit depended on the circumstances in which the deposit occurred and what those circumstances indicated about the parties' intention. Promontoria referred to the recognition by the Court of Appeal in Greene that the parties could have intended that the deposit was to constitute security for a specific debt or debts that were due and owing at the time of the deposit. In the alternative, in Bank of Ireland v Purcell , this Court found that parties were also free to agree that the deposit was intended to constitute security for monies then currently due and owing but also for any advances that might in the future be made by the lender concerned. These positions were accepted by both the High Court and Court of Appeal in this case. Further, Promontoria also relies upon the dicta of Collins J. in Greene in which he found that the analysis in Hannon suggests that the reforms introduced by the 2006 Act "did not consider registration to involve any diminution of the entitlements of lien holders". Discussion on the Fox Point 37. The Fox point is first and foremost a question of statutory interpretation. The issue for consideration is the effect on the lien originally created by the deposit of a land certificate by registration under s. 73(3) of the 2006 Act. The task of interpreting s. 73(3) must be addressed to the ultimate purpose of statutory interpretation: to ascertain legislative intent. The legislative intent can be gleaned through analysis of the language used in the subsection having regard to its position within the Act and the context and purpose of the enactment. Each of the parties sought to place an interpretation on the Act (and s. 73 in particular) by reference to the intent of the legislature. 38. The intent of the Oireachtas in enacting the 2006 Act (and s. 73 in particular) was comprehensively addressed by this Court in the two judgments delivered in Hannon . Clarke CJ. asked and answered the question "What does the 2006 Act do?" (see p. 377 et seq .). Thus, this Court has already looked in detail at s. 73 and it is in that context that the correct interpretation of s. 73(3) for the purpose of resolving the issue in this appeal must be ascertained. Hannon 39. In Hannon, this Court was asked whether the beneficiary of a lien by deposit retained that benefit in circumstances where the lien had not been registered under s. 73 of the 2006 Act. Addressing the purpose of the Act, Clarke CJ. acknowledged that it provides for a coherent statutory scheme. The overall approach of the legislation was to move further towards all land being registered and all interests in land being likewise registered. In neither respect was the movement absolute, although the direction was clear. The Chief Justice held that it was clear that the Act had abolished land certificates which was important in the overall analysis of the Court. Later in the judgment, he described the land certificate in the aftermath of the transition period as "a document of no legal value [which] ... cannot, therefore, properly be described as a document of title". 40. Noting the same three-year transition period for the abolition of land certificates and for the registration of the lien, Clarke CJ. said that the period gave lienholders a reasonable opportunity to put the lien registration process in train. He said that the person who held a land security had a valuable right at the time when the Act came into force and there was a possibility that they might lose that right but only if they did not go through the straightforward procedure of registering their lien. The right continued in existence for three years and continued thereafter provided it was registered. It was thus an overstatement to say that the right had retrospectively been removed. Clarke CJ. described the legislation as regulating in what could "fairly be described as a light-touch way" the entitlements of holders of liens by deposit by requiring registration. 41. Having discussed the case law concerning, inter alia , lost title deeds, Clarke CJ. held that the key question (i.e. the status of an unregistered lien by deposit after the expiry of the three-year period) was one of statutory interpretation. The complete nullification of the status of the land certificate on the expiry of the three-year period was of a different character to the situation of non-deposited or non-retained title deeds. He held that "[w]here that which has been deposited has, by statute, been deemed to be no longer of any legal effect whatsoever" it was difficult to sustain the view that the lien by deposit can survive. He rejected an argument based upon retrospectivity because it was not sufficient "to outweigh the clear statutory intent that the land certificate is to cease to have any legal effect for any purpose" which, carried with it the clear implication that a deposit of the land certificate could not, in the absence of registration provide security over the lands. 42. The three-year period fulfilled two connected purposes, both of which are designed to allow for the orderly transposition of liens by deposit of land certificates into registered liens. Clarke CJ. held that the reference to "is" in the compensation provisions of s. 73(5) could somewhat support a different view but that did not displace the clear statutory intention. Clarke CJ. said that while all liens by deposit in respect of registered land were to cease at the end of 2009, an appropriate system "to protect the interests of those holding such liens" was put in place by giving adequate time for the registration of such liens. 43. Dunne J. reviewed the historical background of the system of registration of title and how the creation of an equitable mortgage by deposit of title deeds occurred in the case of registered land. She found it difficult to come to any other conclusion other than that s. 105 of the 1964 Act ceased to exist which meant that an equitable deposit of a land certificate could no longer be enforced as an equitable mortgage after that date. The whole point of the effectiveness of the deposit of the land certificate was that without the land certificate no further transaction could be carried out in relation to the land. Dunne J. held that s. 73 "enabled the holder of an equitable deposit to register a lien over the land in the three-year period concerned and in that way to preserve their security". Further dicta of Dunne J. relied upon in relation to the Kean point will be addressed below. Greene 44. In Greene , post-dating Hannon , one of the issues before the Court of Appeal was whether the s. 73 registered lienholder was required to prove the date of the creation of the original equitable mortgage. Collins J. (with whom Costello and Binchy JJ. agreed), citing commentary on the 1891 Act shortly after its enactment, held that s. 81(5) of that Act was "an especially significant departure from registration principles, and must be taken to reflect a legislative judgment as to the social and commercial importance of having an informal and inexpensive (and confidential) mechanism for the creation of security over land in Ireland". 45. Collins J. viewed the analysis in Hannon as demonstrating that this Court did not consider registration to involve any diminution of the entitlements of lienholders. He noted that pursuant to s. 31 of the 1964 Act, the register was 'conclusive evidence' that the title of the registered owner was subject to the s. 73 lien. He also noted that the registration provisions in s. 73(3) were very brief saying, inter alia , that the registration does not require information as to the date on which the lien was created or the liabilities to which it relates. In relation to the issue of proof, he held that the lienholder was entitled to rely on the register to establish conclusively that it was the holder of the s. 73 lien. In light of Hannon , it was not the case that the lienholder was attempting in effect to enforce an equitable mortgage, that no longer existed. On the other hand, the lienholder had to establish that sums were due and owing to it and that they were secured by the lien. He rejected the view of the trial judge that evidence of the date of deposit was necessary because it affected priority; in an application for a well-charging order and order for sale in default the High Court is not normally concerned with priority (that is a matter for the Examiner). 46. Collins J. also noted that the issue of priority did not arise in the case before him. He raised however, the example of how the priority of a judgment mortgage might possibly be treated differently in the circumstances of a registered lien compared with the prior situation of the unregistrable lien created by deposit of a land certificate. He said that this difference would appear anomalous and "it seems very doubtful that the Oireachtas intended that the priority of registered liens should be determined by the date of their registration". This was so notwithstanding the provisions of s. 74 which provided that registered interests rank according to the order in which they are entered on the register. Applicable rules of statutory interpretation 47. The cases of Hannon and Greene outline that the general intention of the Oireachtas in enacting s. 73 of the 2006 Act was that not only would land certificates and certificates of charge cease to be issued at the end of the transition period, but that all such certificates would cease to have any force or effect after that time. The Oireachtas did not feel a need to specify that "no new equitable liens by deposit of land/charge certificates can be granted". That is understandable; land certificates or certificates of charge would no longer be created or have a continued existence as documents with legal effect and there was no need to state the obvious. 48. Given that such certificates would cease to have effect, the section demonstrates that the Oireachtas was alert to, and provided for, the effect that would have on the holders of liens by equitable deposit of those certificates. Therefore, albeit "in a light touch way", in s. 73(3) the Oireachtas provided for an opportunity to 'transpose' those liens into statutory liens which would be deemed for the purposes of s. 69 of the 1964 Act to be a burden which may be registered as affecting registered land. 49. There is nothing obvious in the wording of s. 73 that conveys an intention to abolish existing liens; instead, the words on an initial view convey an intention to preserve the existing liens. That was acknowledged by counsel for the appellants who accepted, as they had to, that at first glance (or, as was termed by counsel for Mr. Fox, 'a literal reading of'), s. 73(3) suggests that what was registered seemed to be the same lien. The wording of s. 73(3)(b) which states that "a holder of such a lien may apply to the Authority for registration of the lien in such manner as the Authority may determine" (emphasis added) provides clear support to that interpretation. Section 73(3)(a) already clarified that the holder of "such a lien" as referred to in s. 73(3)(b), is, as set out in s. 73(3)(a), a person "holding a lien on registered land or a registered charge through deposit or possession of those certificates". Moreover, the registration provisions in s. 73(3)(d) also refer to " the lien" being deemed to be a burden which may be registered. Therefore, on a textual consideration of the subsection the wording indicates that the lien that is registered is the lien that existed prior to the registration. 50. Counsel for the appellants strongly argued however that the context in which the subsection was to be interpreted, required an understanding that the lien before registration was not the same as the lien after the registration. While the context is of course a necessary consideration, the fact that there is such a literal (or plain) meaning still affects the process of interpretation. As this Court (Murray J.) said in Heather Hill Management Company v An Bord Pleanála [2022] 2 ILRM 313 , [2022] IESC 43 (" Heather Hill ") at para [115]: "In deciding what legal effect is to be given to those words their plain meaning is a good point of departure, as it is to be assumed that it reflects what the legislators themselves understood when they decided to approve it". Counsel for the appellants also argued however that the plain meaning of the words, in the absence of additional words, did not "entitle the holder of a statutory lien to advance monies on the security of the statutory lien in the future". Thus, within the context, they argued that the plain words supported their interpretation. 51. At this point it is important not to engage in confusion over 'a literal approach' or 'a plain meaning approach'. As O'Donnell CJ. stated in People (DPP) v AC [2022] 2 IR 49 , [2021] IESC 74 , "the basic approach to interpretation is the approach that gives primacy to the words used". The words used in s. 73(3) indicate that the registered lien is the same as the existing lien. As O'Donnell CJ. also said in a passage amplified by Murray J. in Heather Hill , it is wrong to isolate critical words, but "if, when viewed in context, having regard to the subject matter and the objective of the legislation, a single, plain meaning is apparent, then effect must be given to it unless it would be so plainly absurd that it could not have been intended". Therefore, this Court must consider the words in subsections 73(3)(a), (b) and (d) not simply within those subsections but also within the context not only of the rest of that section but also of the Act as a whole. 52. Additionally, however, the Court must also bear in mind that although the best guide to the interpretation of the statute is the language read as a whole, sometimes it necessarily falls to be understood and informed by identifying reliable background information. In those circumstances, "the ' context ' that is deployed to that end and ' purpose ' so identified must be clear and specific and, where wielded to displace the apparently clear language of a provision, must be decisively probative of an alternative construction that is itself capable of being accommodated within statutory language" ( Heather Hill at para [116]). It is against the backdrop of the Hannon case that those submissions must be assessed: noting that Clarke CJ. said that the intent of the Oireachtas was to have all liens by deposit in respect of registered land to cease to have effect at the end of 2009 but that "an appropriate system to protect the interests of those holding such liens [was] put in place by giving adequate time to allow for registration of such liens over the lands" (emphasis added) and that, as Dunne J. stated, s. 73 enabled the holder of the lien on registration "to preserve their security". Thus far, the language and context of s. 73 leans against the appellants' interpretation and in favour of Promontoria's. 53. Counsel for Mr Fox submitted that the Court of Appeal erred in suggesting that s. 73 should not be construed to give effect to "any significant changes in land law" because the changes that might result from the ordinary meaning of the words used therein had not been 'clearly specified'. Citing Heather Hill at para [160], counsel submitted that the scheme and purpose of the 2006 Act makes clear that its enactment was intended to advance the modernisation of the land registration system in Ireland, a legislative aim first expressed in s. 31 of the 1964 Act that the land register should be, insofar as possible, conclusive proof of the ownership of interests in and burdens affecting registered land. It was also submitted that the repeal of s. 105 of the 1964 Act and the extinguishment of equitable mortgages created by deposit of land certificates is clearly rationally connected to this objective. This, it was submitted, was further supported by the fact that the 2006 Act seeks to interfere with mortgagee's rights as little as possible and expressly provides for the preservation (by registration) of security for advances already made. All considered, counsel submitted that the 2006 Act represents a proportionate regulation of unregistered (and unregistrable) security rights, in pursuit of what the Court of Appeal referred to as the "desire to effect a system of universal land registration". 54. In the passage relied upon by counsel for Mr Fox from Heather Hill , Murray J. was speaking of the presumption against implicit changes in the law which he said was sometimes applied beyond its limits. Every statute 'changes' the law and there is no presumption against a statute impinging against rights or significantly departing from pre-existing law. What exists however, is a presumption that imprecise language will not be interpreted so as to impose significant changes to the pre-existing law particularly where that change is contrary to the actual objects of the Act. 55. In my view, this passage from Heather Hill does not advance the appellants' argument much further. As Hannon confirmed, s. 73 clearly and decisively changed the legal position; after the three-year transition period land certificates/certificates of charge were no longer of any legal effect; not only could they not be created but all such liens by deposit were extinguished from the end of the transition period. Only those liens which were registered under s. 73(3) could be relied upon as security. Whether s. 73(3), correctly interpreted, went further and changed the nature of the security provided by the original lien (as one capable of securing future advances) as a result of the registration of the lien (as one incapable of securing future advances) is the very question that is at issue here. In addressing that issue however, one has to bear in mind that, the plain and ordinary meaning of the references to such lien and the lien would require some other clear indication in the rest of the Act or in the context and background of the Act to substantiate the claim that s. 73(3) was, by requiring registration, in fact imposing a significant change in respect of the lien by deposit . Moreover, as Hannon confirms, whatever about a legislative move towards a system of universal land registration, the system at present is an imperfect one where the register only 'mirrors' in 'general terms' the ownership of the title. The characteristics of the lien by deposit and similarities with the statutory lien 56. Prior to addressing the differences, if any, between the lien by deposit and the statutory lien, it is a worthwhile exercise to set out the agreement between the parties as to the nature of the lien by deposit and the nature of the statutory lien. First, counsel for the appellants submitted and counsel for Promontoria agreed, that the effect of the deposit of the land certificate was to create an equitable charge on the land, generating an equitable estate therein for the mortgagee as found in Allied Irish Banks Limited v Glynn; a position emphasised by Collins J. in Greene . One of the consequences of that equitable estate is that the holder of the lien could rely on the lien to obtain a well-charging order and ultimately an order for sale. The registration of the lien continues that charge on the land and permits the holder of the registered lien to obtain a well-charging order and order for sale. It is also noteworthy that no express provision is made in the 2006 Act providing for the right to take such proceedings. It is perhaps of some note that a lien by deposit differed from an instrument of mortgage or a charge in so far as the latter types of security had the possibility of including within them a power of sale, while the lien, being derived from an equitable deposit, did not and could not have such a power of sale. 57. Although the post 2006 Act situation is in dispute, the parties to the appeal also agreed that prior to the 2006 Act, liens by deposit of certificate could secure future advances (as recognised in Bank of Ireland v Purcell ). Moreover, the parties to this appeal agreed that the parties to the security could either at the time of the deposit or after the deposit agree that the existing deposit would stand as security for future advances. There was also no dispute that prior to the 2006 Act the deposit of the land certificate had the same effect as the deposit of title deeds. There was no dispute with the submission of Promontoria that in order to secure future advances there had been no necessity to redeposit the land certificate/title deeds. The same lien or a different lien? 58. Counsel representing both appellants submitted that it was not, and could not be, the same lien that was registered. Counsel for Mr Fox submitted that the context in which one viewed the words in s. 73 involved a consideration of the characteristics of an equitable mortgage created by deposit of title deeds or a land certificate in juxtaposition with the characteristics of a statutory lien created by registration pursuant to s. 73 of the 2006 Act. It was submitted that such consideration demonstrates that it is not the same lien and that the 'statutory lien' was qualitatively different in its outcome, characteristics, ambit and effect . 59. The first difference highlighted by counsel for Mr Fox was that a lien created by deposit did not require registration to affect registered land, whereas a statutory lien depends entirely on timely registration to have any force or affect. A lien created by deposit and the exercise of associated powers depended wholly on possession of the land certificate, whereas a statutory lien can be created only because possession of a land certificate is no longer possible. An instinctive answer to this submission is that this difference is a given due to the changes brought about by the 2006 Act and that it does nothing more than state the obvious. Counsel's submission however was that this was a starting point for the examination of what changes in fact had been brought about by the move from a lien by deposit to a statutory lien. 60. A holder of a lien by deposit was entitled to possession of the land certificate and was, counsel for Mr Fox submitted, consequently in a very powerful position in circumstances where no further transactions could take place in relation to the land without producing the land certificate, essentially guaranteeing that the lienholder's interest took priority over any other interest in the land; an effect acknowledged in both Hannon judgments. This is contrasted with the powers associated with a statutory lien registered pursuant to s. 73 of the 2006 Act, which counsel submitted are significantly reduced. Primarily, the right of veto previously created by possession of the land certificate is extinguished along with the abolition of land certificates and the status of the lien is reduced to that of a mere burden. 61. Counsel for Promontoria challenged the description of the lien by deposit as "all-powerful"; submitting that in some respects liens by deposit were functionally inferior to legal mortgages with respect to specific contractual powers related to defaults and remedies, amongst other matters. With respect to the issue of "a veto" on the transaction, counsel submitted this was a de facto consequence of the holding of the certificate but not an aspect of the lien i.e. an interest in the land; the absence of the de facto veto is not a diminution of value of the lien but a practical effect. 62. In my view, this submission of Promontoria also highlights that the role of the Court in this case is to determine what changes have been brought about as a consequence of the Act requiring registration of the lien as distinct from those changes which go to the heart of the nature of the lien and which thereby make the s. 73 lien a different entity than the lien by deposit. In that regard, it appears to me that the registration of liens following the abolition and ceasing of effect of land certificates is something that makes the de facto veto - as the veto is correctly described - fit more clearly into the realm of consequence rather than inherent characteristic. Exploring differences - anomalies, priorities and charges 63. Counsel for Mr Fox further submitted that possession of the land certificate previously allowed for the practice of 'tacking' subsequent advances to the same lien, displacing the common law rule found in Hopkinson v Rolt (1861) 11 ER 829. A person holding a statutory lien has no such protection or power to subordinate a subsequent incumbrancer to their own interest; only the owner of a charge over registered land can claim priority over any puisne interest in accordance with s. 75 of the 2006 Act. Counsel submitted that the rights formerly enjoyed by an equitable mortgagee retaining possession of a land certificate have been attenuated by the abolition of land certificates. 64. Another significant reform intended by the Oireachtas in the enactment of the 2006 Act, counsel submitted, was the abolition of secured lending by way of depositing land certificate. It was submitted that it was open to the Oireachtas to protect the rights of lienholders by allowing such a lien to operate as a charge rather than as a mere burden on the land, but this is not reflected in the 2006 Act. Counsel submitted that this Court cannot imply into the clear words of s. 73 of the 2006 Act a series of additional words which would entitle the holder of a statutory lien to advance monies on the security of the statutory lien in future, and to do so would impermissibly rewrite the words of the statutory provision ( McGrath v McDermott [1988] IR 258). He submitted that the plain meaning of s. 73 in context is very clear. This interpretation does not result in an injustice; since the provision was enacted, banks and other lenders knew that they could advance funds on the security of a charge over registered land. These submissions are appropriate to consider with those on behalf of Mr Kean. 65. In oral submissions, counsel for Mr Kean explored the 'difference' between the deposit of a land certificate and a registered lien; by referring to what he called the anomaly of the deposit of the land certificate in the context of registered land. He pointed out that, pursuant to the 1964 Act, ownership of registered land is subject only to s. 69 (registered) and s. 72 (unregistered) burdens. He pointed to s. 52 of the 1964 Act which provides that on registration of a transferee of freehold land as full owner with an absolute title, that land was only subject to the aforesaid s. 69 and s. 72 burdens. Similar provision applied to transfers of leasehold land. Thus, the transfer was not subject to an equitable mortgage by deposit. The power of the equitable mortgagee was to prevent the transfer so in that sense there was a veto. The right of the equitable mortgagee was however incapable of registration. It was in that context that the rights of the holder of the land certificate was addressed in s. 105(5) of the 1964 Act, which provided that subject to any registered rights, the equitable deposit had the same effect as a deposit of the title deeds of unregistered land or of a charge thereon, which included the right to apply for a well-charging order and an order for sale. 66. Counsel for Mr Kean referred to the date of operation of the statutory lien as from registration whereas the lien by deposit operates from the date of the deposit. Counsel submitted that a holder of a s. 73 lien does not enjoy priority from the date of the deposit of the land certificate, but priority accrues only from the date of registration. He cited Wylie on Irish Land Law (6th edn, Bloomsbury 2021, [23.36]) as authority for the understanding of s. 74 of the 1964 Act that registered burdens, if unregistered, would rank in priority by virtue of the date of their creation rather than by their order of entry on the register (unless there is an entry to the contrary). Counsel submitted that the s. 73 registered lien only accrues priority from the date of its registration, which in this case is during the 2006-2009 transition period, in contrast to the date on which the pre-existing lien was created by deposit of the land certificate some years earlier (in Mr Kean's case, 2005). This, it was submitted, was a feature of the land registration system which was concerned with priority and not concerned with notice unlike unregistered land. Priority was not a feature in the case of an equitable deposit. The depositee was protected by the need to produce the land certificate to enable the registration of transfers and the creation of certain burdens. With reference to the Land Registration Rules, 1972 (r. 162) made pursuant to s. 105(1) of the 1964 Act, counsel pointed out however that production of the land certificate was not always necessary, for example in the case of certain s. 69 burdens such as the registration of any judgment or order of a court or a burden created by statute or under a statutory power (not being subject to s. 72). Thus, the beneficiary of an equitable deposit can prevent most but not all transactions taking place. In those circumstances, counsel submitted that the holder of the s. 73 lien is in a better position that the beneficiary of an equitable deposit. That is an inevitable consequence of the change but on the other side the s. 73 lienholder cannot prevent further dealings with the registered land. This, counsel submitted, demonstrated that the lien was not the same before and after the 2006 Act. 67. Counsel for Mr Kean then turned to what s. 73 of the 2006 Act was trying to do. He submitted that the purpose was not to wipe out the rights of deposit holders but to protect those rights as of the date of the registration of the lien. It was understandable that the rights over an existing liability would be protected. Counsel submitted that s. 73 of the 2006 Act did not go further and that it did not provide for a power to advance monies on foot of the registered statutory lien in contrast with the express power conferred in respect of a charge on registered land by s. 62(1) of the 1964 Act and the power enjoyed by the holders of 'traditional' liens by deposit. Counsel submitted that such a power cannot be implied into s. 73 because it is not necessary to render effective the clear intention of the legislation; in fact, he submitted, such an interpretation would undermine the aim. Citing Collins J. in Greene , counsel for Mr Kean submitted that s. 73 of the 2006 Act is silent as to the powers enjoyed by holders of a lien registered pursuant to the Act. This silence in the context of the reformed statutory scheme is more indicative of a limited protection of the rights of existing secured lenders than an expansive pre-emptive protection of future lending conduct. Moreover, the entitlement to make further advances was neither a property right nor a constitutional right. Any further advance could be secured by a registered charge which is another method of securing lending. 68. Referring to the dicta of Walsh J. in Bank of Ireland v Purcell that "each time a further advance is made the interest in the property which is being charged is altered", counsel submitted that while the further advance would stem from the same base, it is the creation of an additional interest in the property. Counsel pointed to the absence in s. 73 of a provision similar to s. 105(5) of the 1964 Act which referred to the impact of registration of land on these types of deposits. On the other hand, the Act talked about liens and those other references to liens in s. 69 were confined to specific sums. If a s. 73 registered lien could extend to future advances it elevates the security to a new and higher level. Counsel referred to s. 75 of the 1964 Act. 69. Counsel submitted that it is was highly relevant that s. 75 provided that the registration of a charge which itself expressly provided security for future advances, entitled the registered owner of that charge in priority over any subsequent charge to the payment of any sum due to him in respect of such future advances. That no such equivalent provision is to be found in the 2006 Act, Mr Kean submitted, is entirely consistent with a) a lien tending by nature to relate to security for existing debts, and b) the context of s. 73 abolishing, to the greatest extent possible, the previous system of liens by deposit. He submitted that the Oireachtas expressly chose to discontinue the practice of securing future lending through a registered lien when abolishing land certificates but to permit same in respect of registered charges. 70. If the registered lien can extend to future advances, it would elevate the security to a new and higher level. Counsel gave an example as follows: charge number one is an 'all-monies' charge, charge number two is registered. The registration of the second charge gives express notice to the first chargee of the existence of the second charge, and the first chargee will lose priority over any future advances that it makes. That position could not apply in the context of a s. 73 lien. If the s. 73 lien extends to future borrowings, it means there is no similar provision in respect of liens and because the registered lien takes priority from the date of registration, the lienholder under s. 73 is therefore put in a stronger position than the owner of the registered charge. Counsel also pointed out that this would apply to s. 77 concerning statutory charges as the statutory mortgagee or charge would have gained priority over an equitable deposit but will not gain priority over the s. 73 lien. 71. Counsel for Promontoria characterised the reliance by counsel for Mr Kean on Bank of Ireland v Purcell as an argument that a future advance created a new security. The submission made by counsel for Mr Kean was, it seems to me, somewhat more nuanced in so far as he submitted that each future advance, while stemming from the same base, is the creation of an "additional interest" and that each such advance erodes what might be called "the equity of redemption". Relying on Bank of Ireland v Purcell , counsel for Promontoria submitted that it only altered the extent of the existing security. 72. In Bank of Ireland v Purcell , the Supreme Court (Walsh J.), agreeing with the trial judge, said "each time a further advance is made the interest in the property which is being charged is altered". Bank of Ireland v Purcell involved a challenge to the bank's security in relation to future advances, made without the consent of the spouse after the coming into force of the Family Home Protection Act, 1976, which were secured by deposit of title deeds made prior to the Act. As the plaintiff bank in that case had notice of the fact that the land comprised the family home therefore the interest created by the further advance was void. In my view, Pilkington J. in Fox correctly relied on Bank of Ireland v Purcell in saying that it is not that each new advance amounts to a new security; it was the same security but securing different amounts. As Walsh J. also said, "while a mortgage by deposit of deeds can constitute the conveyance of an interest in the family home for the purpose of s. 3, sub-s. 1 of the Act of 1976, the extent of the interest so conveyed depends upon the amount which has been borrowed against it". If s. 73 precluded the security from covering future lending that was a diminution in the quality of what was held prior to the 2006 Act. While counsel for Promontoria agreed that the ability to attach the lien to future advances is dependent on agreement and that there was no property right in a loan that has yet to be advanced, counsel submitted that the decision in Purcell meant that there was a property right in the land conferred by virtue of having the lien, which undoubtedly, prior to 2006, was capable of being extended to cover future advances. Counsel also submitted that there was nothing to suggest that a s. 69 burden could not cover future lending. 73. The submission of counsel for Mr Kean regarding Bank of Ireland v Purcell appears to be bound up in his argument that the making of a future advance after the registration of the lien is the product of a separate agreement of the parties which creates an interest in the property which is additional to the one created by the initial deposit and which could be done by another means i.e. by a charge. In that regard, counsel argued that this is consistent with the view that s. 73 was designed to protect the existing interests of the lienholder up to the point of registration and which allowed the parties to bargain in the same way as any others in respect of further borrowings and the provision of security for those borrowings. Again, however, it seems to me that this is to assume an answer rather than point inexorably to a particular one. The issue remains whether the correct construction of s. 73 when viewed within the context is that the registration of the lien meant that it was no longer a lien which could secure future advances. I agree with Promontoria's submission that if lienholders prior to the 2006 Act had the right to agree with lenders that the lien created by the deposit of a land certificate could be later extended to encompass subsequently created liabilities but that after the 2006 Act came into force lienholders did not have this right, then there would be a diminution of their existing entitlements as lienholders. Simply stating that fact does not provide the answer to the question raised on this appeal. It is one of a number of factors that must be considered in reaching the correct interpretation. 74. Counsel for Promontoria submitted that Mr Kean's interpretation of s. 73, where another incumbrancer has burdened land between two tranches of lending, would cause an unavoidable expropriation of priority without allowing any possible remedial or evasive action, no matter how alert the lender. He submitted that Mr Kean assumes an answer about the priority of registered liens that was expressly left open by Collins J. in Greene while espousing the opposite answer to that which Collins J. had strongly indicated. 75. It was Promontoria's submission that "the lien" registered pursuant to s. 73 should be considered the same lien as before merely in a different form, changed only to the extent of it now being registered and any alterations that flow absolutely necessarily from such registration in lieu of holding a physical land certificate. Further, Promontoria submitted that the authorities are abundantly clear that liens on land could secure future advances and that liens on land were something of a special case in that they gave rise to an entitlement to take action, by applying for sale of the land, and not just a passive entitlement, as would be the case with most possessory liens, to retain the item in question (in this case a certificate) until payment of a debt or liability. Promontoria additionally rejected the suggestion that a charge is now the only means to create security over registered land in the future where it remains possible to secure new lending on registered land by way of contractual promise or defective deed. 76. Promontoria rejected the appellants' contentions that the old lien by deposit and the statutory lien registered pursuant to s. 73 are qualitatively different, stipulating that the distinctions between the two are exaggerated and nevertheless have no bearing on the power to secure future borrowings. Promontoria further submitted that Mr Fox's contention that lienholders pre-2006 held a veto power over all transactions on the land and that the lienholder could insist on 'tacking' are overstatements of the powers enjoyed by lienholders and the extent of their attenuation. Promontoria also rejects the contention that a lien registered pursuant to s. 73 is a 'mere burden'. 77. Promontoria submitted that any differences between the pre-existing lien by deposit and the statutorily registered lien operate only at the level of practical methodology rather than actual legal entitlement. Even if all of the distinctions alleged by the appellants are correct, Promontoria submits that this does not demonstrate why registered liens should also lose the ability to secure future advances, in addition to all the rights shorn by the disappearance of physical land certificates. 78. Regarding the intention of the Oireachtas, Promontoria rejects the appellants' submission that the legislature clearly intended for a registered charge to be the only means by which borrowings could be secured on registered land post-2009. Promontoria submitted that neither the abolition of equitable mortgages nor the abolition of liens is expressly provided for in statute. Instead, Promontoria submitted that the intention of the Oireachtas was to advance the system of land registration by bringing liens that had previously been invisible to the public onto the register while ensuring that no other unregistered liens could be created. Over time, those that exist will be removed in due course from the register as the land is transacted. Promontoria submitted that the appellants' interpretation of the statute goes further than what is necessary to be rationally connected to the advancement of the system of registration of land and contends for a greater interference with mortgagee's rights than Promontoria suggests, in contradiction of the principles found in Heather Hill . Conclusion on Fox Point 79. The arguments of counsel for the appellants are incisive and comprehensive in their assessment of the interplay between the lien by deposit, the registration system and the registered lien. They point towards some differences between the lien by deposit and the registered lien. Yet for all of that, there remains real doubt as to whether those differences are a consequence of the registration or are indicative of a change of the nature of the security. In other words, are the differences necessitated because of the registration or are they indicative that something different was created by the registration? 80. It is important to return to the essence of what has occurred in the 'transposition' of the lien by deposit into the registered lien. Counsel for Mr Kean uses 'conversion' to support the argument that there is a difference but although 'conversion' was referred to by Clarke CJ. in Hannon , Dunne J. referred to s. 73 registration as a way for lienholders to preserve their security . As agreed by all parties, at the most fundamental level, the registered lienholder is entitled to realise their security - on any advances made prior to registration - in a similar fashion by way of seeking an order that the burden is well-charged on the lands and an order for sale. None of that is explicit in the Act. 81. What is clear is that the 2006 Act abolished the issue of land and charge certificates. This was "part of the move towards electronic registration and, eventually, paperless conveyancing" (per Wylie on Irish Land Law at fn. [12.30]). That can be seen as the purpose of the Act, but the purpose was also to provide for the interests of existing lienholders by deposit who were to be affected by that change. In Hannon , this Court held that the method of creating security by the deposit of a land certificate or a certificate of charge was abolished from midnight on 31 December 2009. The rights of lienholders continued during the three years after the commencement of s. 73 on 1 January 2007 and continued to be enforceable thereafter provided it was registered within that three-year period; an appropriate system "to protect the interests of those holding such liens" was put in place by giving adequate time for their registration. The legislation dealt with the regulation of these s. 73 liens in a "light-touch way". Dunne J., with whom the other members of the Court also agreed, said that s. 73 registration was a way "to preserve their security". As the issue in Hannon was different, the references to protecting the interests and preserving the security of the lienholder are strictly speaking obiter , nonetheless they demonstrate that this Court considered that the Act at least appears to protect those rights. 82. The wording of the various sub-paragraphs in s. 73(3) allow prima facie at least, for an understanding that the lien that is registered is the same lien that was held prior to the registration. I have not been persuaded that there is anything in the context of the Act that requires a different understanding. The appellants' arguments centre on a claim that this is a different lien and that a s. 73 lien could not provide security for an advance made after the date of its registration. 83. The 2006 Act did not expressly provide for certain matters to be retained on registration. Yet there is no disagreement that the lienholder still has the right to apply for a well-charging order and an order for sale. These are rights that the lienholder held prior to the registration and that are implied rights of the s. 73 lienholder. There is also no express language to support the contention on behalf of Mr Fox that the lien was extinguished. Clearly aspects of the lien were continued and if there is an argument to be made that it is a different lien, it cannot come from the express wording but must be one based upon implication. 84. A major difference that was urged on the court by counsel for the appellants was that the priority accorded to a lienholder by deposit of a land certificate was different to that of the s. 73 lienholder who only gained priority from the date of registration. Counsel for Promontoria, while maintaining as Collins J. appeared to indicate in Greene that interpreting the priority to be accorded to s. 73 registered liens would have to take into account that these had been unregistrable burdens prior to the 2006 Act, submitted that this was both an immaterial and unnecessary argument for the purpose of the present appeal. 85. Is the question of priorities necessary to resolve in order to determine if the s. 73 lien could provide security for further advances? In the present case no issue of priority arises but of itself that could not render any argument irrelevant because the interpretation of s. 73(3) applies to all statutory liens. A somewhat more telling point is that issues of priority have rarely arisen in respect of liens by deposit of title deeds; Collins J. in Greene makes that point. Collins J. referred to the case of In Re Driscoll's Estate (1867) 1 IR Eq. 285 (referred to in Hannon ) but noted that the argument arose therein in the context of what was equivalent to a review by the High Court of a Certificate of the Examiner pursuant to the provisions of Order 55. Collins J. noted earlier that disputes on priority rarely arose at the well-charging stage although it could occur if there was a dispute between incumbrancers. This is something I consider of importance; the question of priority rarely, if ever, arises vis-à-vis the holder of the lien and the borrower and therefore it is difficult to see why issues of priority between incumbrancers are necessary to address before reaching an understanding of whether the Oireachtas in enacting s. 73(3) intended to change the nature of the relationship of the borrower and lienholder as regards an established ability of the lien by deposit to secure future advances. 86. I would also note, but do not decide the point, that the extent that the deeming provision in s. 73(3) is intended to apply to the priority provisions in s. 74 may not be quite so straightforward as counsel for the appellants submit. As this Court (Barron J.) said in Erin Executor and Trustee Co. Ltd v Revenue Commissioners [1998] 2 IR 287: "When something is deemed by a statutory provision to be so it becomes a matter of construction of that provision to determine to what extent it is deemed to be so. Is it deemed to be so for all purposes or only for some purposes?" The wording in s. 74, "and which if unregistered would rank in priority according to the date of their creation", may, arguably, not have relevance to a burden which was unregistrable prior to registration under the 2006 Act. 87. Perhaps more important however, is that any question of priority that may now arise is one which may arise as a consequence of the registration requirements of the Act. The Act was a step along the path to having a registration system which mirrored the situation on the ground and was a step along the way to a paperless conveyancing system. Certificates were abolished which led to the consequence that those certificates would no longer be of any value. Registration of the lien was necessary if rights or entitlements were to be preserved, and adequate time was given for that. I do not find support for the contention that any change to priority, if there be such change, amounts to anything other than a consequence that is necessitated by that registration. The ability of a lender and a borrower to negotiate between themselves in respect of the lien in a manner in which commercial convenience and the requirements of trade absolutely demand its continuance (see Greene at para [27] citing an 1894/95 article) was not expressly disapplied by s. 73(3) of the 2006 Act. If the real intention of the legislature had been to extinguish or abolish all the features of the undoubted anomaly of the lien by deposit of land certificates it would be surprising if it did so sub silentio . Instead, what the Act appears to do is only to prevent such liens from being created in the future and, because of necessity arising from the registration of the lien, only to change the operation of the lien to the extent required by legislation. That would include the removal of what was a de facto veto of the lienholder on the transfer of the land as discussed above (indeed it will be recalled from some of the arguments on behalf of Mr Kean that even such a de facto veto was not absolute). 88. Counsel for the appellants argued that it is only rights in being at the time of registration that were preserved and that there was no property right in a future advance. That a property right did not exist in respect of a future advance was not disputed by counsel for Promontoria but what is clear from Bank of Ireland v Purcell is that the lien itself provided a security which, prior to 2006, was capable of securing future advances. I agree with counsel for Promontoria when he submitted that there was nothing in the Act to suggest that a s. 69 burden could not cover future lending. 89. Counsel for Mr. Kean made the point that liens by deposit of certificates were an anomaly in a system of registration that required interests to be registered and s. 105(5) and its predecessor were enacted to deal with this anomaly. No similar provision was made in the 2006 to provide for the operation of s. 73 liens in any way other than that the property rights existing at the time of the registration were preserved. This argument, powerfully made by counsel for Mr Kean, is at the heart of this issue. Yet it is an argument that must be seen in the light of the wording of s. 73 itself. It is the lien that is being preserved. That is the same lien that existed prior, save as regards those changes which are necessitated (or consequent) on registration. As I have outlined already, aspects of the lien by deposit are carried over by s. 73, for example, the registered lien preserves the right to seek a well-charging order. If s. 105(5) was an anomaly, then it is an anomaly that was carried on by transposing the lien by deposit into a registered lien in such a manner that preserved rights and entitlements. There is nothing in the provisions of s. 73(3) of the Act when viewed in light of the background and context of the legislation providing for the registration of title system that compels (or even supports) the interpretation at odds with the view that these liens were, in so far as possible following registration, to continue to operate as they had before. 90. It is true that the Oireachtas could have chosen to deem the lien a charge, but it did not do so. The Oireachtas chose to deem it a burden. Developing the observation made by Pilkington J. in the Court of Appeal, there is however a consistency in continuing to use the word lien; it is after all the s. 105(5) lien that is registered under s. 73(3) and that registered lien is deemed a burden under s. 69 where other, albeit different, liens are already referred to. Keeping the registered lien apart from the registered charges also supports the view that the characteristics of the lien are, in so far as possible, consequent on registration to be continued in the same manner as before. In other words, it is the same security that is being preserved and not the creation of an entirely different security. That would support the view that the lien was to continue in the same way as before subject to any necessary changes consequent upon the act of registration. 91. As set out above, both appellants have referred to s. 75 and the tacking provisions with a slightly different emphasis. Mr Fox points out that the mortgagee by deposit could ensure that the subsequent advances were tacked onto the mortgage by deposit and asserts that the registered lienholder cannot now do so because s. 75 is the only way to do so and that is only provided for a charge holder. Mr Kean agrees and also points to the limitations on that right for registered charge holders because of the notice provisions. He asserts that if the s. 73 lienholder extended to future borrowings there would be no similar provision in respect of liens and therefore that lienholder would be put in a stronger position than the owner of the registered charge. Mr Fox's proposition is one which begs the question but does not answer it. In truth, s. 75 only refers to registered charges and on its face has no application to s. 73(3) lienholders. Mr Kean's observations on the limitations that s. 75 places on charge holders does something similar. Significantly however, the absence of those limitations from registered lienholders (if entitled to secure future advances) would not put the lienholder in any greater position with regard to tacking than they would have been in if they had not been forced to register the lien because of the changes brought about by the 2006 Act. I do not find that resort to s. 75 provides any further context that requires an interpretation contrary to the plain meaning of the words in s. 73(3) of the 2006 Act. 92. In written submissions, counsel cited obiter dicta from Whelan J. ( nem. diss. ) in Bank of Ireland v Carey [2024] IECA 245 (" Carey ") in which there was an attempt to look behind a lien that was being relied upon by the bank to seek to enforce it as security for pre-2009 borrowing. The Court of Appeal in Carey did not have to decide whether the registered lien was sufficient to support future lending, though Whelan J. suggested obiter that she was 'unconvinced' that the registration could expand the ambit of the borrowing albeit she later laid emphasis on the fact the borrowers had accepted the lien as security for the 2008 borrowing in a 2010 Facility Letter. Whelan J. relied on that acceptance as precluding the borrowers from arguing against the enforcement of the lien, though, counsel for Mr Kean stresses it is important to note that there had been no new borrowing post-2009. Promontoria submitted that Mr Kean's reliance on Carey is misplaced as it is not a relevant authority. I agree. The present argument simply did not arise in Carey , and it is thus unsurprising that the judgments in Fox and Kean are not cited in the judgment of Whelan J. despite the fact that Pilkington J., who gave judgment in Fox and Kean , was also sitting on that Court. 93. I should also refer to, if only to reject the relevance of, the argument made on behalf of Mr Kean that the Oireachtas could have made the abolition without prejudice to the pre-existing rights in a similar manner to s. 111 of the Land and Conveyancing Law Reform Act, 2009. That section deals with mortgages expressed to be created for the purpose of securing future advances and states that save in regard to the making of such future advances as referred to in the section, the right to tack in any form is abolished. That section expressly does not apply to registered land. Its purpose was also different in so far as it was expressly dealing with the abolition (with savers) of a specific power that different securities may have rather than the security itself, whereas s. 73 was dealing with the abolition of land certificates/certificates of charge and dealing with the savers for existing liens that would be affected by the consequence of that abolition. There is no true analogy between the two sections. 94. The examination of the relevant provisions of the 1964 Act combined with the context and purpose of s. 73(3) of the 2006 Act does not lead to a conclusion that the interpretation given to the subsection by the Court of Appeal in these cases and which was foreshadowed in both Hannon and Greene was incorrect. The light touch regulation of the transposition of the lien by deposit into the registered lien supports the conclusion that the registered lien was the same as the lien by deposit save for those consequences which were necessitated by the abolition of the land certificates/certificates of charge. Thus, the rights and entitlements of the holder of a lien by deposit to make secured future advances based upon a pre-existing agreement or based upon an agreement to have the existing lien be the security are preserved by the registration of that lien under s. 73(3) of the 2006 Act. The Kean point 95. At issue here is whether sufficient security to ground well-charging relief arises, or could arise, by a mechanism distinct from the lien registered on the folio, specifically a contractual promise to provide security giving rise to an equitable charge. The Court of Appeal did not decide that any such contractual promise was made, it decided that it was open as a matter of law to Promontoria to make that argument. 96. It is important to clarify the circumstances in which this issue may arise in the remitted proceedings. At case management it was agreed that the Kean point was a somewhat contingent point, and its resolution will likely be influenced by the outcome of the Fox point. Yet, in the course of the hearing, this contingency was not accepted by Mr Kean as a limitation. Counsel for Mr Kean submitted that regardless of the outcome of 'the Fox point', it is necessary to resolve this issue because of the nature of the indebtedness claimed by Promontoria in respect of two of the three loan facilities; a claim that the terms of the facility letter, properly construed, does not provide that the monies secured by the lien covers the entirety of the loan facilities. Mr Kean also claims that the lien which purported to be registered in accordance with s. 73(3) is in fact invalid because it was not registered within the transition period allowed under the Act. The Court of Appeal's decision amounts to a finding that as a matter of law (the facts to be determined by the High Court on remittal), it was open to Promontoria to argue that the dealings between the parties amounted to the creation of a form of security outside the registration system set out in the legislation when that promise (to create the security) was not capable of being performed. 97. A preliminary submission was made by Mr Kean asserting the inadequacy of the pleadings throughout the proceedings thus resulting in the Court of Appeal erring in finding in favour of Promontoria. Instead, Mr Kean submitted, the Court of Appeal should have left the matter over to be determined by the trial judge in circumstances where the Kean proceedings before the High Court took the form of a modular hearing and some matters remain extant for consideration on remittal. The inadequacy of the pleadings was disputed by Promontoria and it is one that does not fall for determination by this Court. It is a question that can only be resolved by the High Court on hearing the remitted proceedings. Furthermore, as the Court of Appeal has dealt with the matter it is necessary for this Court to consider this argument further. 98. Counsel for Mr Kean submitted that even if a contractual promise could be found on the facts of his case, it would run entirely contrary to the policy of the 2006 Act, as detailed in Hannon , to say that the promise resulted in an equitable charge. He submitted that the Court below was obliged to discourage "the practice of using old metamorphic liens which were only allowed [to be registered] to avoid losses for pre-2007 lending for the statutorily unsupported purpose of future lending after 2007 effectively as if land certificates were still valid" and submitted that the Court should set its face against supporting and encouraging the ongoing use of registered liens to support future lending ad infinitum , as if land certificates were never abolished. Mr Kean submitted that the trial judge was correct in finding that Promontoria's characterisation of a promise to provide a lien by deposit as being separate and distinct from a lien by deposit in circumstances where the land certificate had been deposited, was an exercise in artificiality. Regardless of whether Promontoria views its equitable interest in Mr Kean's land as a lien by deposit or a promise to provide a lien by deposit, Mr Kean submitted that it was extinguished on 31 December 2009 and replaced, as found by the trial judge in Fox at paras [37]-[38]. 99. Counsel for Mr Kean submitted that s. 73 of the 2006 Act constituted a legislative clean break from the "traditional and informal method" of creating a lien over land, subject only to a 'saver' designed to protect existing constitutionally protected property rights. On the latter part of that submission, the findings I have made on the Fox point ought to be noted. Promontoria's case was, counsel submitted, dependent on a sort of legal fiction which ignores the abolition of the very thing the original lien was based upon. 100. Counsel for Mr Kean posed the question as to what form of security was provided by this. At best, he suggested this could be a chose in action. Was it a lien? A registered charge? It was certainly not a burden. 101. In answer to questions from the Court, counsel for Mr Kean indicated that the basis for Promontoria's argument appeared to stem from the decision in Bank of Ireland v Daly, a case which involved unregistered lands. In his submission, whatever may be said about the reasoning in that case, such an equitable charge could not arise in relation to registered lands as s. 52 of the 1964 Act required the registration of interests save for the anomalous position under s. 105(5) which said that subject to registered rights, the deposit of land/charge certificates had for the purpose of creating a lien the same effect as a deposit of the title deeds of unregistered land or of a charge thereof. If an equitable charge arises it would need to be registerable, which this is not. 102. On behalf of Promontoria, reliance was placed upon the conclusion of the Court of Appeal at para [68] that the existence of "the doctrine of an equitable charge ... [is] beyond doubt. There is nothing within the 2006 Act that impugns that doctrine" and that Promontoria was entitled to advance those arguments in support of their claim for well-charging relief. Promontoria's submission was that it had an agreement ("however informal" per Bank of Ireland v Daly ) that the lands registered to Mr Kean would be used as security for the relevant debts. Counsel cited Wylie on Irish Land Law [12.49] in support of his submission that "no special words are necessary" to create such an agreement "so long as the intention is clear". It is appropriate to comment here that the paragraph relied upon by Promontoria from Wylie is contained in a section which is specifically dealing with the creation of an equitable mortgage on unregistered land (Wylie, p. 628). The relevance of that passage to the creation of an equitable charge over registered land must be doubted or at the very least would require careful interrogation. 103. Promontoria submitted that the evidential basis for this agreement can be found in the Facility Letter and incorporated conditions, and thus Promontoria submitted, it holds an equitable charge over the relevant folio arising from a contractual promise made by Mr Kean to secure his debt with his land. 104. Promontoria submitted that equity looks to intent rather than form and thus where there was an agreement in writing, however informal, for the relevant property to be security for specified debt, equity would, in Promontoria's submission, uphold the agreement. Promontoria cites Hannon in which Dunne J., in considering s. 73 of the 2006 Act, found that "it goes without saying that this change in the law has no bearing on any other method of creating an equitable mortgage in a manner previously known to the law." Promontoria submitted that the contractual promise route to creating an equitable charge or mortgage over land (unregistered or registered) is, and has always been, quite distinct from the method of depositing title deeds or a land certificate, or the registered lien that now stands in place of the latter. Counsel submitted that if the registered lien promised is not capable of acting as security (because of the date of the lending), same is a defect in the form of the security whereas the substance and intent of the promise (to give security over specified land for specified debt) remains clear and operative in equity. Counsel drew an analogy with the promise to give a legal mortgage, which is uncontroversially accepted to give rise to an equitable mortgage separate and distinct from the legal mortgage itself. 105. Promontoria submitted, in line with Bank of Ireland v Daly , that any evidence of an agreement in writing with clear intent that property is to act as security for a debt gives rise to an equitable charge. Promontoria rejected the appellant's contention that the promise to provide a lien by deposit was legislatively superseded so as to cease being capable of grounding well-charging relief, even if the Fox point is found to favour the appellants. It is for the trial judge ultimately determining the well-charging proceedings to determine whether an equitable charge arises on the facts of this case. Promontoria submitted that given that the High Court hearing was modular and that many issues remain extant even if the appeal is decided in favour of Promontoria, then the judge dealing with the remitted proceedings may determine whether the equitable charge is sufficiently pleaded and whether the words contained in the Facility Letter amount to a sufficient promise and whether they amount to a promise that can have any life separate from that of the registered lien itself may be determined by a trial court on remittal. 106. Counsel also drew the Court's attention to the case of O'Keeffe v O'Flynn Exhams and Partners (Unreported, High Court, 31 July 1999), in which the decision in Bank of Ireland v Daly was applied to registered land in terms of the equitable deposit of land. Counsel submitted this was a long-held principle that equity regards as done that which ought to be done. Counsel recognised that if he was incorrect on the Fox point it may be more difficult as this would be a situation where the intended security could not as a matter of law be given. He submitted however that he was still entitled as a matter of equity to rely upon the security which had been agreed between the parties. Discussion on the Kean Point 107. The starting point for the Court's examination is an inherently unsatisfactory one. We are asked to address a legal issue, of considerable importance, without a defined set of facts from which the issue clearly arises. I have already held that registration of the lien under s. 73(3) permits the parties to use the registered lien as security for advances made after the registration provided that such matter was agreed at the time of the original deposit or subsequently agreed between the parties. 108. It appears that the issue of whether an equitable charge has been entered into based upon the contractual dealings of the parties will only arise in one of two ways: a) First, if it is found that the lien was not registered in time, resulting in the original lien being incapable of providing security under the Act because it ceased to have any effect after the end of the transition period at midnight on the 31 December 2009. b) Second, if the facility letter simply did not provide that the money secured by the lien (correctly registered) covered the entirety of the loan facilities. Those two situations may require different approaches. The first raises a matter of law of whether an agreement to create a security that was impossible to grant could nonetheless amount to an equitable charge. The second appears to create an issue that is entirely fact dependent. In the latter situation it may be difficult to establish that there had been any particular agreement to give security for the entirety of the loan facilities. The inference from the argument, as it appears in the abstract manner arising in this appeal, may be that the parties were not ad idem as to the provision of security at all. If the argument is made that there was an intention to cover those facilities by a lien (simply not the lien that was in fact registered) that would appear however to engage a similar argument as under the first situation; it was intended to provide security by way of a lien, but such lien cannot be registered under the registration of land system. 109. In the absence of a precise factual matrix, the abstract nature of the arguments arguably affected the reasoning of both the High Court and the Court of Appeal. The Court of Appeal judgment (para [47]) quotes from the High Court judgment in Kean (para [14]) to the effect that it "is only in the event that the judgment in Fox were held to be inapplicable that it would then become necessary to consider the alternative grounds of defence advanced", a position that Mr Kean does not accept. The trial judge appeared to be referring to an argument detailed more clearly in para [17] that Mr Kean's case differed from Mr Fox's because in Mr Kean's case the deposit of the land certificate was expressly intended to secure future advances. He concluded that the argument was indistinguishable from that in Fox . Accordingly, he held that "[t]he correct legal position is that an equitable mortgage was created in 2005 but subsequently extinguished by operation of the [2006 Act]". 110. The Court of Appeal contrasted their findings on the Fox point with that of the trial judge's. Having relied upon dicta in Bank of Ireland v Daly and an excerpt from Megarry and Wade, Pilkington J. went on to link the parameters of the equitable charge with the finding that the s. 73 lien can be relied upon in respect of advances made after 31 December 2009 (para [61]). At para [62], Pilkington J. said, on the basis of a reliance on the 2012 facility letter and noting the respondent's contention that an issue arises as to the extent to which, properly construed, a s. 73 lien cannot be relied upon in respect of the entirety of the loan facilities , there was no basis for precluding the argument. Again, at para [66], Pilkington J. emphasised the importance of the existence of the s. 73 lien when she held: " That a s. 73 lien can be relied upon on the facts of this case thereafter ensures , in my view, that in light of the respondent's contention that the security may not cover the entirety of the facilities set out within the 2012 facility letter, the appellant can invoke equity and specifically the entitlement to rely upon an equitable charge, in seeking well charging reliefs within its proceedings. " (Emphasis added). 111. In that passage the Court of Appeal links the existence of the s. 73 lien in that case with the entitlement to argue that the contractual promise could provide security. Indeed, the early part of the Court of Appeal decision had made clear its view that the Kean point was clearly linked to the Fox point (para [25]). That sits uneasily with one of the arguments that is made by Mr Kean which is that the lien had not been properly registered (see para [12] of the High Court judgment in Kean ). It is also not clear to me why the clarification that a properly registered lien under s. 73 could secure future advances meant that where, as the allegation is here, there was no properly registered lien, that an agreement to have as security such a non-existent, non-registered lien could be relied upon as an equitable charge. Moreover, because such a lien based upon a deposit of a land certificate could no longer be registered post 31 December 2009, the effect of the decision of the Court of Appeal is that, even though the agreement to provide the security through the lien was not capable of being performed, nonetheless that agreement was of itself capable of providing formal security outside the registration system. 112. As already stated, if there is a little inconsistency in the Court of Appeal decision it may be understandable because of the absent factual matrix to which I have already referred. It may also be that the premise behind counsel for Mr Kean's submission only became clear when he was asked during the oral hearing about Bank of Ireland v Daly . The case had not been mentioned in written submissions but, counsel clarified, that was because it could not be relevant to registered lands. Indeed, counsel for Promontoria also stated that he had not understood the argument to be so directly related to the difference between unregistered and registered land. Counsel for Mr Kean submitted that prior to the 2006 Act, Bank of Ireland v Daly could not apply to registered land as s. 105 only allowed for the deposit of the certificate to be treated the same as a deposit of title deeds i.e. the deposit created the equitable mortgage. Counsel accepted that in those circumstances, pre the 2006 Act, there would be a remedy for the lender, as it would be possible to bring an action for specific performance seeking the deposit of the land certificate. Counsel submitted that it was clear from the 1964 Act itself that such an agreement could not be relied upon to act as an equitable mortgage. It was only under s. 105(5) or s. 72 that there was any capacity for an equitable charge affecting the land without registration. There was a fundamental problem with the concept of the equitable charge which was that it was only when registered that it could be used to obtain a well-charging order. 113. The Court of Appeal primarily relied upon the decision in Bank of Ireland v Daly and it is appropriate to look at it in a little more detail. That case involved an agreement to deposit title deeds which was not fulfilled. It was an unusual case in many ways. The plaintiff bank lent money to the defendant company for the purpose of buying land. The company wrote to the plaintiff promising to repay and to deposit the title deeds as security in accordance with the agreement. The bank paid over the purchase money and most of it was used to pay the vendor the balance of the purchase money. The property was conveyed to the defendant. The company failed to deposit the title deeds and the bank claimed a lien on the property and based the claim on a right to be subrogated to the rights of the vendor of the property. The company, now in liquidation, contested the bank's claim claiming that the bank, having required security by way of equitable mortgage was precluded from claiming to be subrogated to the vendor's lien and that, in the absence of registration pursuant to s. 99 of the Companies Act, 1963, the lien constituted a charge and was void. 114. McMahon J. held that the bank was entitled to an unpaid vendor's lien by subrogation up to the completion of the sale to the company and, thereafter, the bank was entitled to an equitable charge by virtue of the agreement set out in the letter. He held that the agreement to lodge the title deeds was sufficient in itself, without an actual deposit of the title deeds, to create an equitable charge on the principle that an agreement in writing, however, informal, by which any property is to be security for a debt creates an equitable charge. He came to the conclusion that the right of subrogation after completion of the sale was not excluded by the agreement for a deposit of the title deeds. In his view "[t]he security by subrogation is not inconsistent with the security by deposit of title deeds. Each is an equitable security of the same rank, but a deposit of title deeds if implemented, would enable the Bank to impede or prevent any dealing with the legal estate in the property without the Bank's consent". Thus, McMahon J. said that the security by deposit of the title deeds can be regarded as a security which is additional to the security by subrogation rather than as a substitute for it. Counsel for Promontoria submitted that while certain aspects of what was said in the decision may be questionable, it was an illustration of well-established equitable principles. His view was that registration of land did not preclude the creation of an equitable charge. McMahon J. relied upon the English decision of London and Cheshire Co v Laplagrene Co [1971] Ch 499 in which it was held an unpaid vendor's lien was a creature of law, not dependent on contract but on a right of the vendor to specific performance of his contract and was not registerable under the equivalent provisions in England and Wales to s. 99 of the Companies Act, 1963. 115. Clearly, Bank of Ireland v Daly was an unusual case (a point with which all parties agreed). It was a case that considered a) unregistered land, b) the issue of subrogation to an unpaid vendor's lien, c) the effect on the right of subrogation after completion of the sale of an agreement by the borrower to deposit title deeds with the lender after purchase, and d) that s. 99 of the Companies Act did not require registration of an unpaid vendor's lien arising on the purchase of property by a company. 116. The decision of Costello J. in O'Keeffe v O'Flynn Exhams and Partners subsequently applied the decision of Bank of Ireland v Daly to registered land. There is little or no analysis of why it would so apply and most importantly it does not appear that there were any submissions of the type that were made to this Court on behalf of Mr Kean. 117. In so far as legal precedent is concerned, it is clear that the previous decisions did not give full consideration as to what this type of equitable charge over registered land might entail, how it might fit into the system of registration of title and how it might be enforced, especially in the absence of a prior step such as an action for specific performance of the agreement to lodge the certificate. Moreover, reliance on the authority of Bank of Ireland v Daly does not address the relevance, if any, of the subsequent abolition of land certificates and the inability post 31 December 2009 to create any new equitable mortgages by deposit of land certificates or to register any such equitable mortgages previously created. There has been no analysis as to what the nature of such an equitable charge would be, if indeed one could be created. It would, prima facie at least, appear to be unregistrable and if that is the case, there is a real question to be answered about the precise nature of the interest in land that has been created. 118. As I have also said, the factual matrix on which this has been presented is entirely unclear. Clarity as to facts would have provided greater clarity as to the nature of the claim being made by Promontoria and an opportunity to assess the full implications of agreeing in principle that this argument was open as a matter of law to a lender who asserts that an equitable charge may arise from the contractual interactions with the borrower even though as a matter of law the promise to provide the security was incapable of being performed. In my view, it would also be inappropriate for this Court to reach any firm conclusion as to whether such an equitable charge could or could not be created in those circumstances. That issue will have to await the substantive hearing in the High Court when that court will be able to consider the full legal implications of the facts that it has found. Due consideration will have to be given to the important public policy, manifest in the 2006 Act, of the move towards a system where all land and interests in land are registered. Therefore, the Court of Appeal decision on this aspect of the case cannot be said to be binding on the High Court in this case (or indeed any other case). When this issue arises in the High Court, that court must address ab initio the decision in Bank of Ireland v Daly and its relevance, if any, to this issue in so far as it concerns registered land. Promontoria's argument that s. 11(7) of the 2009 Act preserves judicial recognition of equitable interests (such as those referred to by Dunne J. in Hannon ) will fall to be analysed by the High Court as part of that consideration. Conclusion 119. For the reasons set out in this judgment, I have concluded that the Court of Appeal correctly interpreted s. 73(3) of the 2006 Act in holding that liens properly registered pursuant to that subsection are capable of securing loan agreements or advances made after registration. 120. On the issue of whether as a matter of law there is no basis for precluding the appellant from advancing an argument that security sufficient to ground well-charging relief arises, or could arise from a form of contractual promise even if the promise to do so by registered lien was legally ineffective, I have concluded that the issue should be remitted to the High Court for a full reconsideration of the facts and the law with a view to reaching a decision de novo and without being bound by the decision of the Court of Appeal in its assessment. That assessment must address the fact that what is at issue in these proceedings is registered land. 121. In the circumstances, I would dismiss these appeals and propose that both proceedings be remitted to the High Court for determination. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: https://www.bailii.org/ie/cases/IESC/2025/2025IESC23.html