The Court of Appeal has allowed an appeal by Allied Irish Banks plc (AIB) over the priority of claims to proceeds from the court-ordered sale of land in County Waterford. It found that the Land Registry entry for AIB’s charge was conclusive evidence of its ownership and priority, and that the Assistant Examiner had made a fundamental error by refusing to admit AIB’s claim on the basis that the mortgage appeared unsigned.
The dispute arose after ADM Mersey plc obtained a well-charging order and an order for sale of land in Folio 684. The property was sold in 2017 for €110,000. AIB’s mortgage, registered in 2009, covered about four fifths of the folio; ADM Mersey’s judgment mortgage, registered in 2011, covered Mr Aidan Flynn’s interest in the whole folio.
In October 2013, the Assistant Examiner did not admit AIB’s claim under the mortgage, citing a lack of evidence of the charge and that the deed did not appear to be signed by the mortgagor. AIB’s separate judgment-mortgage claim was admitted. The Examiner’s 2018 certificate recorded AIB’s mortgage claim as not admitted and placed ADM Mersey’s claim ahead of AIB’s admitted judgment-mortgage claim.
AIB applied to vary the certificate after it had become binding. The High Court dismissed that application, finding no special circumstances to justify reopening it. On appeal, the Court of Appeal held that AIB had shown special circumstances because the Examiner had failed to treat the register as conclusive evidence of AIB’s title to the registered charge. The court also found that the exhibited mortgage showed Mr Flynn’s signature, although that issue was not needed to decide the appeal.
The court allowed the appeal and proposed replacing the certificate’s paragraph on AIB’s charge with wording recording the debt and interest due under it. It also proposed that ADM Mersey’s reasonable costs and sale expenses be certified and reimbursed from the funds in court, with unresolved amounts determined by the Assistant Examiner. After those costs, the court proposed distributing the remaining proceeds four fifths to AIB and one fifth to ADM Mersey, subject to the parties agreeing the allocation. These were proposed further orders; the judgment invited written submissions within 28 days if either party sought different terms.