The High Court has ruled that a mortgage deed held by Cascade Estates Limited over lands in County Kildare is valid and takes priority over a judgment mortgage registered by Larianov Foundation. The court did not make the consequential orders in the judgment; Justice David Keane said he would hear the parties about what orders should follow.
Larianov had sought a well-charging order for €438,876 over lands owned on a leasehold basis by Leo Prendergast and Sons (Engineering) Limited. The company did not appear or participate in the proceedings. The main dispute at trial was between Larianov and Cascade over the validity and priority of Cascade’s mortgage.
Larianov had agreed to lend the company €350,000 in late 2002, with interest at 8% and security by a first legal charge. It advanced €250,000, but no mortgage was executed for that loan. Larianov later obtained judgment for €438,876, including interest, on 4 April 2011. Its judgment mortgage was registered against the lands on 9 January 2012.
Cascade had made three loans to the company between 2004 and 2006, totalling €1.3 million. The company executed a mortgage deed in Cascade’s favour on 24 March 2004. It was registered as a company charge on 1 April 2004, but was not entered on the Land Registry folios until 30 August 2012, after Larianov’s judgment mortgage.
Larianov argued that errors in the deed made it invalid: it gave a Jersey address for Cascade, described it as a bank, and had not been signed by Cascade. The judge accepted evidence from Cascade director Peter Zajac that the address and bank recital were included by mistake. He found the errors clear and the necessary corrections apparent. He also rejected the argument that the deed was invalid because Cascade had not signed it. Larianov’s separate claim that the bank recital should deprive the deed of priority on public-policy grounds was rejected; the judge found it had been included through innocent mistake.
Under the relevant land-registration provisions, the judge found Cascade already had an unregistered right affecting the lands when Larianov registered its judgment mortgage. He concluded that the later registration of Cascade’s deed in the Land Registry did not displace that prior right. He also said that, even if Larianov’s earlier loan payments created an equitable charge, it could not take priority over Cascade’s registered charge under section 68(3) of the Registration of Title Act 1964.
The judgment determines the deed’s validity and priority. It does not set out the final orders on Larianov’s well-charging application; those were left for a further hearing.