The High Court has ruled that a bank’s contractual power to appoint a receiver survived the 2009 repeal of provisions in the Conveyancing Act 1881, but that the bank could not rely on a repealed statutory procedure to seek possession of registered land in the proceedings before the court.
The judgment, delivered by Ms Justice Iseult O’Malley on 13 September 2013, answered legal questions referred to the court in a special case arising from three sets of proceedings involving Frank Sheahan, Joseph Sheahan, MyMortgages Limited, Michael McAteer and Bank of Ireland entities. The court dealt with Module 1 only. It did not determine the constitutional questions raised in the underlying cases.
The dispute concerned the effect of the Land and Conveyancing Law Reform Act 2009, which repealed section 62(7) of the Registration of Title Act 1964 from 1 December 2009. That section had allowed a registered chargeholder to apply to court for possession once repayment of the secured principal had become due. The judgment considered whether the repealed power was preserved by section 27 of the Interpretation Act 2005.
The bank argued that the court should depart from the earlier decision in Start Mortgages v Gunn. It relied in part on a mortgage clause deeming secured money due on execution of the deed, and on the principle that legislation should be interpreted, where reasonably possible, in a constitutional way. Justice O’Malley held that these arguments did not justify departing from Gunn. She concluded that the lender’s right to apply under section 62(7) had not been acquired or accrued by the repeal date on the basis of the arguments before her. The bank therefore could not use that statutory procedure in the possession proceedings.
The court reached a different conclusion on the receiver. It held that the contractual power to appoint a receiver was based on the mortgage deed and was not removed by the repeal. Where a receiver of rents and profits is properly appointed, with any required formalities observed, the power to take possession is implicit when needed to perform the receiver’s functions. The court held the appointment lawful on the questions referred and answered that the receiver was entitled to take possession. A separate question about the appointment’s validity if that possession power were absent did not arise.
The court did not decide whether the 2009 Act’s replacement possession provisions applied to the pre-2009 charge. The parties agreed they did not, while the Attorney General reserved her position. The judgment records that constitutional issues were argued but leaves them for a later module. It also records that the answer to the question about the replacement provisions was not argued; the parties agreed the answer was no, and the Attorney General reserved her position.