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High Court, in an application for a well-charging order over lands in County Kildare, decides whether a charge executed in favour of the notice party in 2004 but not registered on the folios until 2012 is valid, and whether it holds priority over a judgment mortgage of the same lands registered some eight months prior to the first charge's registration date, and: (1) upholds the validity of a mortgage deed despite its not being signed by the borrower, and finds that the errors on the deed in respect of the company's name and address are non-determinative; and (2) finds that the notice party's charge must take priority over the judgment mortgage as it is the date of register, and not of creation, which is determinative according to legislation, which furthermore excludes judgment mortgages from obtaining such priority.
Application for well-charging order over lands in County Kildare - whether a charge on land executed in favour of notice party which remained unregistered for 8 years is valid - whether such charge holds priority over judgment mortgage in favour of plaintiff registered 8 months prior - defendant not participating in proceedings - notice party a limited liability company registered in British Virgin Islands - facts not in issue - judgment debt of €436,876 due and owing - deed of mortgage and charge unregistered with Land Registry as burden on lands until August 2012 - whether purported errors on mortgage deed invalidate it - principles concerning construction of deeds - errors are clear and may be rectified given evidence of defendant regarding construction of agreement - errors in description or address or a mortgagee not determinative - no infirmity in a mortgage deed simply because it has not been signed by mortgagee - issue of priority - land and conveyancing legislation - timing of payment of loan monies and whether same creates an actionable equitable charge which could take priority over judgment mortgage - s.68(3) Registration of Title Act 1964 priority of registered charge - 'generalia specialibus non derogant - mortgage deed valid and takes priority over judgment mortgage
Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.
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