The Supreme Court dismissed an appeal by The Wise Finance Company Limited over its claim for possession of lands at Jerpoint, County Kilkenny, after concluding that the lender had not demanded payment before applying to court.
The case arose from a £21,250 sterling advance to John Lanigan in February 1997. The lender said £60,898.47 was due by early 2000. It sought possession under section 62(7) of the Registration of Title Act 1964, which allows a court to order possession when repayment of money secured by a charge has become due.
The charge deed described the loan in its schedule as IR£25,000 and referred to repayment by instalments. But the advance was made in sterling, and the commitment letter provided for no instalments. The High Court dismissed the lender’s application, finding that the discrepancies meant it could not rely on the deed’s primary covenant to repay “the loan.”
On appeal, the lender limited its argument to a separate covenant requiring Lanigan to pay and discharge “general indebtedness” on demand. The Supreme Court accepted that, if the advance did not qualify as “the loan” under the primary covenant, it could fall within general indebtedness and therefore within the secured monies covered by the charge.
However, the Court said the lender still had to show that the general indebtedness had become due before it could obtain possession under section 62(7). The lender relied on a solicitor’s letter of 18 February 2000, which demanded possession within seven days and said Lanigan could instead pay £60,898.47. The Court held that offering payment as an alternative to the possession demand was not itself a demand for payment.
The Court therefore concluded that the required prior demand had not been proved and dismissed the appeal. It did not reconsider the High Court’s conclusion about the primary loan repayment covenant; the lender accepted that conclusion for the purposes of the appeal.