The Supreme Court dismissed an appeal by Charles McGuinness and Noel Mulligan, concluding that Ulster Bank Ireland Limited validly appointed David O’Connor as receiver over charged property.
The dispute concerned a deed of appointment signed on the Bank’s behalf by Michael McNaughton under a power of attorney. His signature was witnessed, but the appointment deed was not sealed. The borrowers argued that the mortgage terms required either a signature by a duly authorised Bank officer or execution under seal, and said the appointment did not meet either requirement.
The Bank accepted that the appointment had to comply with the mortgage terms. It did not contend that McNaughton had been shown to sign as a duly authorised Bank officer. Instead, it argued that he executed the deed under the power of attorney and that the witnessed signature satisfied the Land and Conveyancing Law Reform Act 2009.
Delivering judgment on 28 March 2019, Ms Justice Finlay Geoghegan considered whether the deed was “made” by the Bank or by McNaughton, the individual who signed it on the Bank’s behalf. The court held that, for the execution requirements in section 64(2)(b), “made by” refers to the person who executes the document. McNaughton had authority under a valid power of attorney to execute and deliver deeds of appointment in connection with receiverships.
Because he signed as an individual in the presence of a witness who attested his signature, the deed met the relevant statutory requirement. The court concluded that it took effect as if executed under seal and therefore complied with clause 9.1 of the mortgage deed. It did not need to decide the effect of section 17 of the Powers of Attorney Act 1996.
The Supreme Court appeal followed a 2014 High Court ruling that the receiver had been validly appointed. The Supreme Court’s decision upheld the appointment and dismissed the appeal; it did not make a new finding beyond the validity of that appointment.