Judgment: 2023-04-24 · Court archive

High Court refuses lender’s bid to add unregistered land to possession case

The appeal concerned whether a possession claim over registered land could be amended to include unregistered land and a house at Springwood, County Wexford.

High Court · [2023] IEHC 200

Who, what, where, when and why

Who
  • Promontoria (Pluto) Limited (Plaintiff)
  • Ms Justice Bolger
What

The appeal concerned whether a possession claim over registered land could be amended to include unregistered land and a house at Springwood, County Wexford.

Where

Places mentioned in the report

  • Springwood
  • Folio 21271
  • Ballymitty
  • County Wexford
When

Judgment:

Other dates in the report
  • 11 May 2023

    The court refused the amendment and affirmed the Circuit Court decision. It did not determine the underlying possession claim or make a final costs order in this judgment. Justice Bolger gave an indicative view that costs should follow the cause and that the defendant should receive her costs, and listed the matter for mention on 11 May 2023 for further submissions on costs and final orders.

Why

Reasons reported in the judgment

Ms Justice Bolger said the proposed amendment would introduce a new case for possession of the defendant’s unregistered land, including a house, rather than clarify the claim originally brought. The court found there was insufficient evidence at this stage that the 2000 mortgage covered that land.

The High Court refused Promontoria (Pluto) Limited’s application to amend its possession proceedings to include unregistered land and upheld the Circuit Court’s refusal. The application concerned the scope of the lender’s existing case, not a final decision on the substantive possession claim.

Ms Justice Bolger said the proposed amendment would introduce a new case for possession of the defendant’s unregistered land, including a house, rather than clarify the claim originally brought. The court found there was insufficient evidence at this stage that the 2000 mortgage covered that land.

Promontoria’s Civil Bill, issued in October 2019, described land in Folio 21271, County Wexford, measuring about 10.241 hectares. The lender later sought to add land described in a 1998 conveyance as unregistered. That deed covered registered and unregistered land at Springwood, Ballymitty, including a house; together, the lands were described in the judgment as about 53 acres.

The lender argued that the mortgage deed covered the unregistered land and that leaving it out would prevent it from realising the full security. It relied on the mortgage’s description of the property as Springwood, and on a letter from the defendant referring to her property there as security, alongside a valuation report describing the house and surrounding farmland.

The defendant disputed that the mortgage was intended to cover the unregistered land or her home. Justice Bolger noted that the lender had not produced a mortgage document showing security over that land or evidence that it held the title deeds. She said the letter and valuation report, on their own, did not establish that the mortgage included the unregistered property.

The judge also noted that the lender’s original pleadings identified the mortgaged property by reference to Folio 21271 and described an area substantially smaller than the registered and unregistered lands together. She concluded that the proposed amendment went beyond the case pleaded in 2019, with no adequate explanation for its omission at the outset and prejudice to the defendant if it were allowed.

The court refused the amendment and affirmed the Circuit Court decision. It did not determine the underlying possession claim or make a final costs order in this judgment. Justice Bolger gave an indicative view that costs should follow the cause and that the defendant should receive her costs, and listed the matter for mention on 11 May 2023 for further submissions on costs and final orders.

Read the original court judgment

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