Judgment: 2023-07-21 · Court archive

High Court prepared to grant Ulster Bank well-charging order, pending company document

The court rejected the defendant’s arguments over the loan transfer and lien registration, but deferred final orders until the bank files a certificate relating to its conversion to a designated activity company.

High Court · [2023] IEHC 445

Who, what, where, when and why

Who
  • Emily Egan (Judge)
What

The court rejected the defendant’s arguments over the loan transfer and lien registration, but deferred final orders until the bank files a certificate relating to its conversion to a designated activity company.

Where

Places mentioned in the report

  • Apartment No. 43, Dubh Carraig, Ardmore, County Waterford
  • Ardmore, County Waterford
When

Judgment:

Other dates in the report
  • 25 July 2023

    The judge said she intended to declare that €19,709.83 and €300,274.06, totalling €319,983.89, was well-charged in favour of Ulster Bank DAC against the defendant’s interests in Apartment No. 43, Dubh Carraig, Ardmore, County Waterford. She deferred final orders pending the further affidavit and listed the case for mention on 25 July 2023. The judgment does not record the later filing or the final order.

Why

Reasons reported in the judgment

The defendant argued that the bank had transferred the legal interest in the loan and security to Promontoria (Oyster) DAC, and therefore could not enforce the security. The judge held that the folio’s registration of Ulster Bank as owner of the lien was conclusive in these proceedings. She also found that the evidence did not show that the legal interest had been transferred. The judge noted that a 2016 bank letter saying the debt had been “legally sold” could have caused uncertainty, but said later correspondence and sworn evidence clarified that only the economic benefit had been transferred.

The High Court has said it is prepared to grant Ulster Bank DAC a well-charging order over a defendant’s property, but deferred final orders until the bank files a certificate confirming its conversion to a designated activity company.

In a judgment delivered on 21 July 2023, Ms Justice Emily Egan considered Ulster Bank DAC’s application for relief over a loan originally advanced by Ulster Bank Ireland Ltd. The bank sought a declaration that €347,385.59 was due as of September 2018, together with interest, and that the debt be secured against the defendant’s interest in property.

The defendant argued that the bank had transferred the legal interest in the loan and security to Promontoria (Oyster) DAC, and therefore could not enforce the security. The judge held that the folio’s registration of Ulster Bank as owner of the lien was conclusive in these proceedings. She also found that the evidence did not show that the legal interest had been transferred. The judge noted that a 2016 bank letter saying the debt had been “legally sold” could have caused uncertainty, but said later correspondence and sworn evidence clarified that only the economic benefit had been transferred.

The defendant also challenged the lien’s registration, alleging that he had not received notice and questioning the authority of the bank official who signed the application. The judge found the documents did not raise an inference that the lien was improperly registered. She said challenges to registration belonged in rectification proceedings, which the defendant had not brought. The court could not determine the validity of the registration in this well-charging application.

A remaining issue concerned whether Ulster Bank DAC had shown that it was the same legal person as Ulster Bank following a company re-registration. The judge said the evidence filed did not include the relevant certificate of incorporation and appeared to contain a different document. She treated the omission as an oversight and allowed the bank to address it in a further affidavit.

The judge said she intended to declare that €19,709.83 and €300,274.06, totalling €319,983.89, was well-charged in favour of Ulster Bank DAC against the defendant’s interests in Apartment No. 43, Dubh Carraig, Ardmore, County Waterford. She deferred final orders pending the further affidavit and listed the case for mention on 25 July 2023. The judgment does not record the later filing or the final order.

Read the original court judgment

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