The Court of Appeal has dismissed Thomas Morrin’s appeal over the transfer of two County Kildare properties, finding that Secured Property Loans Limited (SPL) retained its power to take possession and sell the lands after sub-charging its security to its managing director, Ronald Weisz.
The appeal concerned a High Court decision dismissing Morrin’s claims for declarations that the November 2013 transfer was invalid and that the defendants held the lands for him. The Court of Appeal upheld that decision. It did not order the lands returned to Morrin or direct a change to the property register.
Morrin borrowed €320,000 from SPL in December 2009, secured against lands registered in Folios 24835F and 12327. After he fell into arrears, he signed documents in May 2011 consenting to SPL taking possession and acknowledging its power to sell. The documents were witnessed by a solicitor whom Morrin accepted was acting independently for him.
In March 2011, SPL had sub-charged its charges over the lands to Weisz as security for money he had advanced to SPL. Morrin argued at trial that Weisz should have been involved in the consent and the later sale. He also argued that SPL had not taken possession within seven days of his consent, as required by section 97 of the Land and Conveyancing Law Reform Act 2009. The High Court rejected those arguments.
On appeal, Morrin advanced further claims, including that the sub-charge had been concealed and that the mortgage and consent were affected by fraud or an unconscionable bargain. The Court of Appeal said these claims had not been pursued at trial and could not be introduced on appeal in the circumstances. It also found no evidence supporting the allegations of fraud. The court concluded that the mortgage documents allowed a sub-charge without notice to the borrower, and that Morrin’s lack of knowledge did not invalidate his consent.
The court distinguished a transfer of a charge from a sub-charge. It held that a sub-charge did not, by itself, transfer SPL’s legal title or remove its rights under the principal charge. Nothing in the sub-charge showed that SPL had surrendered its enforcement rights. SPL therefore retained the power to recover possession and sell the lands, and its November 2013 transfer to the defendants for €400,000 was a valid exercise of those powers.
The appeal was dismissed. Justices Haughton and Murray agreed with Faherty J.’s judgment.