The High Court declared Gordon Smith the sole beneficial owner of a property in Saggart, County Dublin, and ruled that Promontoria Scarriff DAC holds an equitable mortgage over the entirety of that beneficial interest.
In a supplemental judgment delivered on 22 March 2022, Ms Justice Pilkington settled the terms of the final order after a further hearing on 25 February. The judgment followed a principal judgment delivered on 26 May 2020.
The court said the property’s bare legal title remained vested in its former vendor or vendors, while the entire beneficial interest belonged to Smith. The lands were unregistered. Promontoria sought a determination of its equitable mortgage and a declaration of Smith’s beneficial ownership, but did not ask the court at that stage to pursue possible registration with the Property Registration Authority.
Smith did not wish to rectify the title or obtain a good marketable title at that time, despite Promontoria having offered to join him in proceedings for that purpose. The judge said the applicant’s proposed order was more expansive than Smith’s draft, but the difference was not material in law. The judgment did not resolve the title rectification or registration questions.
The mortgage arose from a solicitor’s undertaking dated 30 May 2006 by William Davies & Co. to First Active plc, which later became the applicant following the transfer of First Active’s business to Ulster Bank DAC. The undertaking was to execute a first legal charge or mortgage over the property as security for a home loan to Smith. The judgment said the undertaking had not been complied with and remained outstanding.
On costs, Promontoria argued that Smith had declined a route under sections 25 and 26 of the Trustee Act 1893 that could have addressed the property’s marketability and the applicant’s interest. Smith argued that Promontoria had succeeded on only one aspect of its claim and there should be no costs order. The judge found that Smith’s decision had caused the applicant additional expense.
The court ordered Smith to pay the applicant’s costs of the proceedings, including interlocutory applications and the costs application itself. The amount is to be adjudicated if the parties cannot agree. The declaration of beneficial ownership includes liberty to apply.