Proofs not in order for application for well charging order and order for sale

Conveyancing and property law - proofs required for an application for a well charging order and order for sale – fund argues that it has succeeded to the mortgagee’s interest in an equitable mortgage which had been created by way of the deposit of a land certificate - predecessor in title is said to have relied upon this equitable mortgage in order to register a lien as a burden against the title of the lands – fund is in a position to establish its interest in the lien - whether it is necessary for the fund has to go further, and to provide evidence as to the creation of the equitable mortgage in the first instance - application dismissed on the basis that the fund had not put before the court any evidence of the creation of the equitable mortgage, and that proof of the registration of a lien on its own is not sufficient – facts established in evidence - legal position obtaining prior to the expiration of the three-year transitional period under the Registration of Deeds and Title Act 2006, and prior to the coming into force and effect of the Land and Conveyancing Law Reform Act 2009 - time period relevant to the asserted equitable mortgage - no longer possible to create an equitable mortgage or lien, in the case of registered land, by way of the deposit of a land certificate - evidence before the court establishes that the fund has an interest in a lien registered as a burden against the defendant’s interest - the position of the equitable mortgagee was protected in practice by the fact that the registered owner would be unable to deal with the land in the absence of the land certificate - land certificates are no longer issued, and, as a consequence, the possibility of the creation of a lien by way of the deposit of a land certificate has been abolished - Registration of Deeds and Title Act 2006 did not provide an express statutory remedy for enforcing such registered liens - if, therefore, the holder of a registered lien wishes to enforce their security, then they must do so by way of an application for a well charging order and an order for sale pursuant to the inherent jurisdiction of the court - necessary precondition to the making of such an application that the principal monies be due and owing - the mortgagee under an equitable mortgage created by the deposit of title deeds cannot be in a better position than the holder of a legal charge, and it would seem to follow that, at a minimum, they too must establish that the principal monies secured by the lien are due and owing - a plaintiff must not only establish that the lien has been registered as a burden, they must also establish the existence of a contractual arrangement whereby a debt has been secured on the lands and demonstrate that the principal monies are now due for repayment - a plaintiff must lead evidence in respect of the deposit of the land certificate - plaintiff must provide evidence as to the date upon which the equitable mortgage was first created, as this date will be crucial in determining priority between any competing mortgages – fund seeks to attach too great a significance to the registration of the lien by the Property Registration Authority – application refused –