Judgment: 2021-12-21 · Court archive

High Court keeps lien dispute, citing wider question about 2009 registration deadline

A judge refused to remit a lender’s proceedings to the Circuit Court, finding the defence raised a significant question of statutory interpretation. The defendant received protection against higher High Court costs.

High Court · [2021] IEHC 796

Who, what, where, when and why

Who
  • Promontoria (Oyster) Designated Activity Company (Plaintiff)
  • Michael Kean (Defendant)
  • Garrett Simons (Judge)
What

A judge refused to remit a lender’s proceedings to the Circuit Court, finding the defence raised a significant question of statutory interpretation. The defendant received protection against higher High Court costs.

Where

No place detail is included in this summary.

When

Judgment:

Other dates in the report
  • 31 December 2009

    Mr Justice Garrett Simons said the dispute involved whether an application to register a lien made before 31 December 2009 was sufficient under transitional provisions in the Registration of Deeds and Title Act 2006, even if registration was completed later. He described the statutory interpretation issue as one of general public importance that went beyond the facts of the case.

  • 11 March 2010

    Mr Kean argues that the lien was not validly registered. Documents he exhibited may indicate an application was made on 31 December 2009, while the land certificate was not lodged until 11 March 2010. He also exhibited an April 2010 letter to Ulster Bank stating that the application had been completed. Promontoria’s affidavit response was that an application made before the deadline was sufficient. The judgment does not decide that dispute over registration.

  • 24 January 2022

    The application to remit was refused, subject to that protective costs direction. The judge’s provisional view was that there should be no order as to costs for the transfer motion, noting that Mr Kean had obtained some success through the costs protection. The case was listed for case management on 24 January 2022, when either party could argue for a different costs order.

Why

Reasons reported in the judgment

The High Court has refused an application to transfer a lender’s proceedings over a registered land lien to the Circuit Court, finding that the case raises a significant question about the deadline for registering such liens.

The High Court has refused an application to transfer a lender’s proceedings over a registered land lien to the Circuit Court, finding that the case raises a significant question about the deadline for registering such liens.

Mr Justice Garrett Simons said the dispute involved whether an application to register a lien made before 31 December 2009 was sufficient under transitional provisions in the Registration of Deeds and Title Act 2006, even if registration was completed later. He described the statutory interpretation issue as one of general public importance that went beyond the facts of the case.

Promontoria (Oyster) Designated Activity Company brought the proceedings against Michael Kean by special summons. It seeks a well charging order over Mr Kean’s interest in registered lands and a declaration that €310,512.83, plus continuing interest, is due under loan agreements. The judgment says Promontoria is said to have succeeded to the interest of Ulster Bank Ireland DAC.

Mr Kean argues that the lien was not validly registered. Documents he exhibited may indicate an application was made on 31 December 2009, while the land certificate was not lodged until 11 March 2010. He also exhibited an April 2010 letter to Ulster Bank stating that the application had been completed. Promontoria’s affidavit response was that an application made before the deadline was sufficient. The judgment does not decide that dispute over registration.

In seeking transfer, Mr Kean’s counsel argued that the case involved no unusually important point of law and could be decided by the Circuit Court on the evidence and established law. The judge disagreed, saying a High Court judgment would help provide legal certainty, with reference to prior Supreme Court and Court of Appeal decisions.

The judge also said the practical benefit of a local venue would not arise because the case would be heard remotely and on affidavit. To address the defendant’s concern about additional costs, he directed that any costs order ultimately made against Mr Kean be limited to the Circuit Court scale. Mr Kean may still apply for a differential costs order if successful in the proceedings.

The application to remit was refused, subject to that protective costs direction. The judge’s provisional view was that there should be no order as to costs for the transfer motion, noting that Mr Kean had obtained some success through the costs protection. The case was listed for case management on 24 January 2022, when either party could argue for a different costs order.

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