Start Mortgages Ltd & Ors v Gunn & Ors

Factual and Procedural Background

This judgment addresses four related cases in which plaintiffs seek possession of registered land pursuant to section 62(7) of the Registration of Title Act 1964, a provision repealed by the Land and Conveyancing Law Reform Act 2009. The cases were heard together due to the common legal issue concerning the consequences of the repeal of section 62(7). The plaintiffs in each case hold mortgages registered as charges on land, and the defendants are borrowers in default of repayment obligations. The plaintiffs initiated possession proceedings either before or after the repeal date of 1st December 2009. The court was tasked with determining the extent to which the repeal affects the right to seek possession under the repealed section and whether rights accrued or acquired prior to repeal are preserved under the Interpretation Act 2005.

Legal Issues Presented

1. Whether the repeal of section 62(7) of the Registration of Title Act 1964 by the 2009 Act extinguished the right of registered charge holders to apply for possession of land.
2. Whether rights to possession under section 62(7) that were acquired or accrued prior to repeal are preserved by the Interpretation Act 2005.
3. When the right to apply for possession under section 62(7) is deemed to have been acquired or accrued—specifically, whether this occurs on registration of the charge or only after default and demand for repayment.
4. The effect of the repeal on proceedings commenced before and after 1st December 2009, the commencement date of the 2009 Act.
5. Whether a lacuna exists in the law for mortgages created before 1st December 2009 but where the right to possession had not accrued before that date.

Arguments of the Parties

Plaintiffs' Arguments

• The right to possession under section 62(7) was acquired or accrued upon registration of the charge or at least upon default and demand prior to repeal.
• The Interpretation Act 2005 preserves rights, privileges, obligations, and legal proceedings accrued or acquired prior to repeal, allowing continuation or institution of possession proceedings despite repeal.
• The discretion granted to the court under section 62(7) is limited and does not negate the existence of a right to possession.
• The repeal of section 62(7) does not create a gap for mortgages registered before 1st December 2009 whose rights accrued before that date.
• For cases where proceedings were issued before repeal or where default and demand occurred before repeal, possession proceedings may be continued or instituted.

Defendants' Arguments

• Section 62(7) was repealed and cannot be relied upon by plaintiffs for possession orders after repeal.
• The right to possession under section 62(7) is discretionary and thus no absolute right is acquired or accrued prior to the court's exercise of discretion.
• Demand for possession made after repeal means no right had accrued or was acquired before repeal, barring reliance on the Interpretation Act.
• Proceedings issued after repeal without a pre-repeal accrued right cannot be maintained.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Northern Banking Company Limited v. Devlin [1924] 1 I.R. 90	Holder of a charge does not have an estate or interest sufficient to recover possession absent statutory provision.	Confirmed that section 62(7) conferred a statutory right to apply for possession, filling a historical gap.
Birmingham Citizens Permanent Building Society v. Caunt [1962] 1 Ch. 883	The court’s discretion under equivalent possession provisions is very limited; possession orders generally must be granted if principal sum is due.	Supported the view that the right to possession is substantive and the court has limited discretion to refuse possession.
Anglo Irish Bank Corporation v. Fanning [2009] IEHC 141	Affirmed the limited discretion of the court in possession applications under section 62(7).	Applied principles from Birmingham Citizens case to confirm entitlement to possession upon default.
Bank of Ireland v. Smyth [1993] 2 I.R. 102	Section 62(7) confers a right to possession subject to equitable principles; discretion is limited.	Interpreted the discretion as an equitable safeguard rather than a denial of the right to possession.
Director of Public Works v. Ho Po Sang [1961] AC 901	Distinction between a right accrued/acquired and a mere expectation; rights must be vested at repeal to be preserved.	Used to analyze whether the right to possession was vested before repeal, impacting reliance on Interpretation Act provisions.
Chief Adjudication Officer v. Maguire [1999] 1 WLR 1778	Clarified when rights are acquired or accrued for purposes of Interpretation Act; contingent rights may qualify.	Guided the court’s interpretation of “acquired” and “accrued” rights in relation to possession applications.
O'Sullivan v. Superintendent in Charge of Togher Garda Station [2008] 4 IR 212	Distinguished acquisition and accrual of rights in statutory context; relevant to timing of possession rights.	Supported the conclusion that possession rights accrue only after default and demand, not merely on registration.

Court's Reasoning and Analysis

The court began by examining the statutory framework under section 62 of the Registration of Title Act 1964, particularly subsection (7), which allowed a registered charge holder to apply for possession once the principal sum became due. The repeal of this subsection by the 2009 Act raised the question of whether existing or future possession rights survived repeal.

The court gave significant weight to the Interpretation Act 2005, which preserves rights, privileges, obligations, and proceedings accrued or acquired prior to repeal. The pivotal issue was the timing of when the right to possession under section 62(7) is acquired or accrued.

After reviewing the mortgage documents and relevant case law, the court rejected the argument that the right to possession arises immediately upon registration of the charge. Instead, it held that the right only accrues when the principal monies secured by the charge become due, which requires both a default and a demand for repayment.

The court analyzed the discretion conferred on the court by section 62(7) and found it to be limited and equitable rather than negating the existence of a right. It also considered authorities distinguishing between mere expectations and vested rights, concluding that the right to apply for possession is a vested right once the principal sum is due following demand.

Applying these principles to the cases, the court found that where default, demand, and proceedings occurred before repeal, rights were preserved and proceedings could continue. Conversely, if demand or proceedings occurred after repeal without a prior accrued right, the right was not preserved, and proceedings could not be maintained.

The court acknowledged a legislative gap for mortgages created before repeal but where the right to possession had not accrued before repeal, as the 2009 Act’s new provisions do not apply retrospectively. It stated that it is not the court’s role to fill this lacuna.

Holding and Implications

DISPOSED OF as follows:

• Possession proceedings commenced before 1st December 2009 under section 62(7) may be continued after repeal by virtue of the Interpretation Act 2005.
• Proceedings instituted after repeal may only be maintained if the lender had acquired or accrued the right to possession before 1st December 2009, i.e., default and demand for repayment occurred before that date.
• If demand for repayment was made after 1st December 2009, the lender has neither an acquired nor accrued right to possession under the repealed section, and proceedings must be struck out.
• The repeal of section 62(7) has created a lacuna for mortgages registered before 1st December 2009 where rights had not accrued before repeal, as the 2009 Act’s new mortgage enforcement provisions apply only to mortgages created after that date.
• The court declined to remedy this legislative gap, emphasizing that any such remedy must come from the legislature.

The direct effect of this decision is to clarify the transitional application of possession rights following the repeal of section 62(7), preserving rights vested before repeal while limiting new claims under the repealed provision. No new precedent beyond this interpretation of statutory repeal and accrued rights was established.