The Court of Appeal has dismissed Sean McHale’s appeal and affirmed a High Court order in favour of Promontoria (Oyster) DAC, which sought to enforce a registered lien over farmland in County Mayo.
Promontoria brought the proceedings in 2018, claiming €147,831.58 was due under a loan facility and seeking a declaration that the sum was well charged on McHale’s interest in lands in Folio 38240, as well as an order for sale. The High Court granted the relief sought, with costs, and stayed the sale order for 28 days.
McHale’s appeal focused on the lien. He argued that Promontoria had not produced evidence of the original deposit of the land certificate with Ulster Bank, or proof that the certificate still existed. He also challenged the Folio entry, which recorded Promontoria’s interest in the lien in March 2017, after the statutory deadline for registration of liens.
The Court of Appeal held that the lien had been registered as a burden on the Folio on 22 December 2009, within the period allowed by section 73 of the Registration of Deeds and Title Act 2006. It said registration was conclusive evidence that the land was subject to the lien, so Promontoria did not have to provide further evidence about the original deposit or produce the land certificate. The court also found that the later recording of Promontoria’s interest did not breach section 73: subsequent transfers were governed by the ordinary land-registration rules.
The judgment noted that McHale had not disputed in his affidavits that he entered into a lien by deposit with Ulster Bank, or that the loan facility letter identifying the lien as security was signed by him. No argument was advanced on appeal against the High Court’s finding that the debt was due and owing.
The court concluded that McHale had not shown that the High Court judge erred. It dismissed the appeal and affirmed the High Court order. The High Court costs order was left undisturbed. The court indicated that McHale should pay Promontoria’s appeal costs, subject to a possible brief supplemental hearing if he applied within 21 days regarding the terms of the order, including costs.