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1. These proceedings were instituted by a special summons which was issued on 2nd December, 1996. On the endorsement of claim on the special summons the Plaintiff, which is a limited liability company registered under the laws of England and Wales, claimed the following reliefs:-

2. The property set out in the First Schedule was therein described as follows:-

3. The proceedings were grounded on the Affidavit of Ronald Weisz sworn on 3rd December, 1996 which proved the following facts:-

4. The special summons came on for hearing on 24th February, 1997. The Defendant had not entered an appearance and he did not attend and was not represented at the hearing. An Order was made declaring that the principal moneys and interest secured by the indentures of charge stood well-charged on the Defendant's interest in the lands registered on Folio 37201. There followed a finding that it appeared that there was due to the Plaintiff on foot of the said indentures of charge a sum of £167,500 for principal and a sum of £18,750 for interest up to 3rd December, 1996, making together the sum of £186,250. It was ordered that the Defendant should be at liberty to come in and dispute that finding within one month from the date of the service of the Order upon him. It was further ordered that, in default of the Defendant so disputing the said sum within the time aforesaid and in default of payment to the Plaintiff of the said sum together with further interest on the principal sum of £167,500 at the rate of 8% per annum until payment and the costs thereinafter awarded within three months from the date of service aforesaid, the lands registered on Folio 37201 should be sold at such time and place and subject to such conditions as should be settled by the Court. An account of all encumbrances subsequent as well as prior to and contemporaneous with the Plaintiff's demand and an enquiry as to the respective priorities of all such demands as should be proved were directed to be taken and made in the Examiner's Office. The Plaintiff was awarded the costs of and incidental to the application and Order and the proceedings thereunder when taxed and ascertained in equal priority with its demand.

5. It is not clear whether the Order of 24th February, 1997 was served on the Defendant. In any event, on 17th February, 1998 the Plaintiff issued a motion in these proceedings against the Defendant returnable for 9th March, 1998 in which the Plaintiff sought either:-

6. That application was grounded on the Affidavit sworn on 11th February, 1998 of the Plaintiff's Solicitor, Eamonn O'Connor. In that Affidavit Mr. O'Connor averred that in the months of October, November and December 1997 certain third parties expressed an interest in purchasing the lands registered on Folio 37201, but that it emerged, as a result of enquiries, that "the processing of a sale of the said property through the Examiner's Office was likely to take a considerable period of time thereby deterring those third parties who had expressed an interest in purchasing the said property". The deponent also referred to Clause 13(b) of each of the indentures of charge which gave the Plaintiff certain powers, including a power of sale, in the event of default by the Defendant in payment of the moneys thereby secured. It was averred that an order for possession would have been more advantageous to the Plaintiff than the reliefs sought in paragraphs (a) and (b) of the special summons and would have facilitated a sale without the necessity of a Court sale through the Examiner's Office. It was further averred that the Defendant had not paid to the Plaintiff any of the sums due on foot of the indentures of charge since the date of the Order of 24th February, 1997.

7. Mr. O'Connor's Affidavit also disclosed that separate proceedings had been instituted by the Plaintiff on 3rd April, 1997 against the Defendant (Record No. 1997 No. 3891P Ct. 6). I will refer to these proceedings as the plenary proceedings. By an Order made in the plenary proceedings on 28th April, 1997 by the President, which was a Consent Order, it was ordered that the Defendant his servants or agents or any persons acting in concert with them or with the knowledge of the making of the Order should be restrained from removing and/or carrying away sand or gravel or other property from the lands registered on Folio 32701 or otherwise unlawfully interfering with the said property.

8. On 14th April, 1998 Michael Grimes issued a motion in these proceedings and in the plenary proceedings seeking, among other reliefs, an Order joining him as a notice party in these proceedings and an Order consolidating these proceedings and the plenary proceedings. In broad terms, Dr. Grimes contends that he is entitled to be joined as a party and to be heard in these proceedings as receiver of Bere Island Motors Limited, which I will call "the Company", which he alleged is the lessee of the lands registered on lands Folio 32701 under a lease from the Defendant. Dr. Grimes has exhibited, inter alia, the following documents in a lengthy Affidavit sworn by him on 14th April, 1998, namely:-

9. The Plaintiff contends that Dr. Grimes has no locus standi to seek the reliefs he claims and that he has not established any interest in the lands registered on Folio 32701.

10. The Defendant filed an Affidavit sworn on 22nd May, 1998 in response to the Plaintiff's current application. He also appeared in person on the hearing of the Plaintiff's application. He contended that the moneys claimed by the Plaintiff were only partially advanced to him. Moreover, he contended that the advances were only to be short term bridging finance and were not intended to be secured by way of mortgage. He argued that, in relation to the advances secured by the indenture of charge dated 24th April, 1996, all of which were made before 13th May, 1996, the date on which the Consumer Credit Act, 1995 (Section 2) Regulations, 1996 (S.I. No. 127 of 1996) came into operation, the advances having been made in this jurisdiction by the Plaintiff which was a moneylender operating without a money-lender's licence and in contravention of Section 5 of the Money-lenders Act, 1933 (the Act of 1933) they were unlawful and irrecoverable. In support of this contention he relied on a judgment delivered by me on 27th April, 1998 in another matter involving the Plaintiff, The Wise Finance Company Limited -v- James Hughes (Record No. 1997 No. 232 Sp.). In relation to the advance secured by the indenture of charge dated 12th June, 1996 he submitted that the Plaintiff is not exempted from the requirement to hold a licence as it is a money-lender "pure and simple".

11. I propose considering Dr. Grimes' application to be joined as a party in the proceedings first.

12. On behalf of the Plaintiff, Ms. Butler argued that Dr. Grimes is not entitled to be joined as a party to these proceedings on two grounds. First, she submitted that the purported lease dated 1st November, 1996 having been purportedly made after the creation and registration of the two indentures of charge in favour of the Plaintiff was void. In each indenture of charge in Clause 14(k) the Defendant covenanted with the Plaintiff not to demise or let or part with the possession of the mortgaged property or any part thereof without the prior consent in writing of the Plaintiff and not to exercise the statutory powers of leasing or agreeing to lease contained in Section 18 of the Conveyancing Act, 1881 (the Act of 1881). Ms. Butler cited the decision of this Court in I.C.C. Bank Plc. -v- Verling , (1995) 1 I.L.R.M. 123) and she relied, in particular, to the following passage from the judgment of Lynch J. at page 129:-

13. Clause 15 of the mortgage deed of 31 May, 1991 which I have quoted above, is of course such a contrary intention as is referred to in Section 18(13) of the Conveyancing Act, 1881 and it is clear therefore and indeed counsel for the second and third defendants conceded that the lease of 23rd May, 1993 was null and void when it was first granted by the first defendant to the second and third defendants."

14. In my view, Ms. Butler's submission is well founded. Clause 14(k) of each of the indentures of charge in this case is a contrary intention which excludes the operation of Section 18 of the Act of 1881. Apart from that, in any event, the purported lease of 1st November, 1996 is not such a lease as a mortgagor in possession would be entitled to make so as to bind a prior encumbrancer if Section 18 was not excluded because it did not "reserve the best rent that can reasonably be obtained, regard being had to the circumstances of the case" as required by Section 18(6) and, in fact, did not reserve any rent at all.

15. Secondly, Ms. Butler submitted that Dr. Grimes was not eligible to be appointed receiver of the Company on 6th March, 1998. In an Affidavit sworn by him on 7th May, 1998 in response to Dr. Grimes' application, Mr. Weisz exhibited the results of a search carried out in the Companies Office which disclosed that, according to the records in the Companies Office, Dr. Grimes is the secretary of the Company. By virtue of Section 315(1) of the Companies Act, 1963, substituted by Section 170 of the Companies (Amendment) Act, 1990, a person who is, or who has within twelve months of the commencement of the receivership been, an officer or a servant or the company, is not qualified for appointment as receiver of the property of a company.

16. On the evidence before me, it would appear that Dr. Grimes was ineligible for appointment as receiver of the company on 6th March, 1998. Moreover, the so-called "Notice of Appointment of a Receiver" could not, on its own and without satisfactory evidence of the power and authority of the person purporting to make the appointment, be regarded as sufficient proof of the valid appointment of an eligible individual as receiver and manager of the Company.

17. Dr. Grimes has not established any entitlement to be joined as a party to these proceedings and all of the relief claimed by him is refused.

18. As regards the Plaintiff's application, the Defendant now seeks to challenge the validity of the charges given to the Plaintiff, which, on the Plaintiff's initial application, in the absence of such a challenge, were assumed to be valid. Each charge was executed by the Defendant in the presence of his solicitor. Each charge was registered as a burden on the relevant folio, Folio 37201, in the Land Registry. It was a term of each of the commitment letters that the lands registered on Folio 37201 would be security for the advance to which the commitment letter referred. It is true that of the sums aggregating £167,500 which in the commitment letters were expressed as advances, sums aggregating £37,990 represented procurement fees, brokers fee, legal fees and interest, both prospective interest on the advance to which the letter related and past interest on other advances, so that the sums actually advanced to the Defendant aggregated only £129,710. However, this was clear on the face of the commitment letters.

19. In relation to the Defendant's contention that the lending secured by the indenture of charge dated 24th April, 1996 was in contravention of Section 5 of the Act of 1933 and was unlawful and that the security given for it is unenforceable in reliance on my decision in

20. Following the enactment of the Act of 1933 the Money-lenders (Exemption of Bodies Corporate) Regulations, 1934 (S.R.O. No. 11 of 1934) governed the granting of an exemption under paragraph (e). My decision in the Hughes case was that, there being no evidence that the Plaintiff had obtained an exemption under the 1934 Regulations before making the advance to Mr. Hughes, the advance to Mr. Hughes was unlawful. At the hearing of the Hughes case, Section 136 of the 1989 Act was not referred to in the submissions. By virtue of that section there was substituted for paragraph (e) of Section 6 of the Act of 1900 the following paragraph:-

21. At the hearing in the Hughes case the Money-lenders Act, 1900 (Section 6(e)) Order, 1993 (S.I. No. 167 of 1993) (the 1993 Order) which was made by the Minister for Enterprise and Employment in exercise of the powers conferred on him by Section 6 of the Act of 1900, as amended by the Act of 1989, to which Ms. Butler referred me, was not referred to in the submissions. Article 2 of that Order provides as follows:-

22. It is hereby declared that the Money-lenders Act, 1900 does not apply to the following classes of bodies corporate;

23. The 1993 Order was made on 14th May, 1993 and the Minister for Finance consented to its making on 24th June, 1993.

24. The Plaintiff contends that at the time the advances secured by the indenture of charge dated 24th April, 1996 were made the Act of 1900 did not apply to it by virtue of Article 2(1)(a)(iii) of the 1993 Order. In an Affidavit sworn by Mr. Weisz on 29th May, 1998 a copy of a letter dated 31st January, 1995 from the Plaintiff to the Department of Enterprise applying for an exemption from obtaining a money-lender's licence in Ireland was exhibited. In that letter, which was signed by Mr. Weisz, it was stated that the Plaintiff was incorporated in England in 1989 and had held a Consumer Credit Licence in the U.K. since 1989 and had notified the Department of Trade and Industry that it intended to do business in Ireland, although its primary business was still in the U.K.. It was further stated that the Plaintiff's business was "short term finance, property development and business consultancy". No response from the Department to the Plaintiff was exhibited. However, a letter dated 19th May, 1998 from the Department of Enterprise Trade and Employment was exhibited in which the writer stated as follows:-

25. My judgment in The Wise Finance Company Limited -v- Hughes was undoubtedly incorrect in failing to advert to the amendment of paragraph (e) of Section 6 of the Act of 1900 by Section 136 of the Act of 1989 and the existence of the 1993 Order.

26. As regards the instant case, had the validity of the charge dated 24th April, 1996 been challenged before the Order of 24th February, 1997 was made the issue which would have arisen was whether the Plaintiff had established that when the advances were made its business consisted wholly or mainly of the business of lending money where the loan was secured on land, whether with or without other security. In order to establish non-application of the Act of 1900 in reliance on Article 2(1)(a)(iii) of the 1993 Orders to a particular transaction the test is not whether in the particular transaction the lender was given security on land but whether the business of the lender at the date the transaction was effected consisted wholly or mainly of the business of lending money on the security of land. Frankly, on the evidence before me I cannot determine whether between 6th October, 1995 and 16th April, 1996 the Plaintiff came within the class of body corporate referred to in Article 2(1)(a)(iii) of the 1993 Order. However, until such time as it is reversed on appeal the Order of 24th February, 1997, which assumed, in the absence of any challenge by the Defendant, the validity of the charge dated 24th April, 1996, stands.

27. As regards the charge dated 12th June, 1996, the Plaintiff contends that it lawfully made the advance thereby secured as a "mortgage lender" within the meaning of Section 2(1) of the Consumer Credit Act, 1995 and that it came within the class described as a "mortgage lender" in the Consumer Credit, 1995 (Section 2) Regulations, 1996 (S.I. No. 127 of 1996), (the 1996 Regulations) namely:-

28. In his Affidavit sworn on 29th May, 1998 Mr. Weisz exhibited a letter from the Director of Consumer Affairs dated 22nd May, 1998 which contained the following statement:-

29. It is not clear at what stage the examination in question took place and, in particular, it is not clear whether on the relevant date for present purposes, 11th June, 1996, the 50% parameter prescribed by the 1996 Regulations was complied with by the Plaintiff. However, again, the situation is that the validity of the charge dated 12th June, 1996 was not challenged by the Defendant before the Order of 24th February, 1997 was made, and the Order stands until reversed on appeal.

30. While the Order of 24th February, 1997 stands, I am not disposed to accede to the Plaintiff's application to substitute for the relief granted in that Order an Order for possession for the following reasons:-

31. Accordingly, the reliefs sought on the Plaintiff's Notice of Motion dated 12th February, 1998 are refused.