Ennis Property Finance DAC v Greally [2020] IEHC 38 (03 February 2020)

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JUDGMENT of Mr Justice Garrett Simons delivered on 3 February 2020

1. This matter comes before the High Court by way of an application for an order for

possession pursuant to section 62(7) of the Registration of Title Act 1964. The

application is brought by a company, Ennis Property Finance DAC (“Ennis Property”),

which asserts that it has succeeded to the mortgagee’s interest in a mortgage and charge

entered into by the defendant, Mr Henry Greally, on 5 April 2004 with Bank of Scotland

2. Mr Greally opposes the application for an order for possession. Mr Greally has filed an

affidavit, and was represented at the hearing before me on 27 January 2020 by solicitor

and counsel. The unusual feature of this case is that the content of Mr Greally’s affidavit

is almost entirely irrelevant to the present proceedings, and, instead, appears to be

directed to separate proceedings which Ennis Property has taken against him. More

specifically, the content of the affidavit responds to an application for summary judgment

brought by way of Summary Summons. This affidavit does not engage with the issues

which are relevant to an application for an order for possession.

3. The application for an order for possession is made pursuant to section 62(7) of the

Registration of Title Act 1964. This section had been repealed by the Land and

Conveyancing Law Reform Act 2009. The repeal is, however, now subject to transitional

provisions under the Land and Conveyancing Law Reform Act 2013. The effect of section

1 of the 2013 Act is that, as respects a mortgage created prior to 1 December 2009,

section 62(7) of the Registration of Title Act 1964 continues to apply, and may be invoked

or exercised by any person as if those provisions had not been repealed.

4. The mortgage in the present case is dated 5 April 2004, and was registered as a charge

on the folio on 21 April 2005 (County Galway, Folio 26535). The transitional provisions

thus apply, and Ennis Property is entitled to invoke section 62(7).

(7) When repayment of the principal money secured by the instrument of charge has

become due, the registered owner of the charge or his personal representative may

apply to the court in a summary manner for possession of the land or any part of

the land, and on the application the court may, if it so thinks proper, order

possession of the land or the said part thereof to be delivered to the applicant, and

the applicant, upon obtaining possession of the land or the said part thereof, shall

6. The approach which a court must take on an application for an order for possession has

been explained as follows by the Supreme Court in Irish Life and Permanent Plc v. Dunne

“[…] In order for the power to seek an order for possession under s.62(7) of the

1964 Act to have arisen, what was required was that the principal monies were

due. It follows that the question which any court invited to apply the jurisdiction

arising under that section must ask itself is as to whether, as a matter of law, it can

properly be said that the principal monies had become due. The first port of call for

determining whether those monies had become due is to identify the terms of the

contract between the lender and the borrower as to when the entire principal sum

can be said to fall due. Terms in that regard can, and do in practice, differ. It may

be that, on a proper interpretation of the contractual documents in one case, a

demand for payment following some form of default may be necessary. It might,

however, be the case that, in other circumstances and in the light of the terms

contained in a particular mortgage deed, the full sum may become due without

7. The Court of Appeal in Tanager DAC v. Kane [2018] IECA 352 held, at paragraphs [67]

and [68], that the correctness of the Register of Title cannot be challenged in possession

8. The application for the order for possession is grounded upon the affidavit of Mr Jonathan

Hanly sworn herein on 24 February 2017. Mr Hanly identifies himself as an “officer” of

Ennis Property. He further avers that he is duly authorised to make his affidavit on behalf

of Ennis Property, and does so from, inter alia, knowledge which was derived from books

and records in his custody and/or power and/or possession. Mr Hanly avers as follows at

“2. I say that any and all of the books and records perused by me are part of and

contained within the ordinary books and records of the Plaintiff and were made in

the usual and ordinary course of business of the Plaintiff and I further say that all of

the said books and records are in the control and custody of the Plaintiff. I say that

I have examined the originals of the said books and records and compared them to

any copies thereof referred to in the within proceedings and I am satisfied that they

9. Presumably, this averment is intended to attract the provisions of the Bankers’ Books

10. Mr Hanly has exhibited a copy of a mortgage and charge dated 5 April 2004 (“the 2004

Mortgage”). The 2004 Mortgage is said to have been entered into between Henry Greally,

11. The “secured liabilities” are defined under the 2004 Mortgage as meaning, inter alia, all

monies, obligations and liabilities whether actual or contingent which now are or at any

time hereafter may become due owing or incurred by the mortgagor to the bank, i.e.

12. An “event of default” is defined as meaning the happening of an event under any loan

agreement, facility letter other arrangement with the bank whereby the secured

13. Clause 8 of the 2004 Mortgage provides for a power of sale at any time after the

occurrence of an event of default or where the secured obligations have otherwise

8.1 At any time after the occurrence of an Event of Default or where the Secured

Obligations have otherwise become due and payable the Bank may forthwith

without any further demand on or notice to the Mortgagor exercise the statutory

power of sale conferred on mortgagees by [the Conveyancing Act 1881] free from

the restrictions imposed by Section 20 thereof and Section 17 of the Act shall not

8.2 Immediately upon the Bank making demand upon the Mortgagor for payment and

discharge of the Secured Obligations or any part thereof (as an when the same

shall have become due and payable) or immediately upon the Secured Obligations

becoming otherwise due and payable in accordance with the provisions hereof, the

Secured Obligations shall be deemed to have become due within the meaning of

Section 19 of the Act and this security shall immediately become enforceable and

the power of sale and other powers conferred by the said Sections as varied or

extended by this Deed and all other powers conferred upon the Bank by this Deed

14. The 2004 Mortgage expressly provides, at clause 27 thereof for the assignment of the

15. Mr Hanly has also exhibited a copy of the relevant folio, County Galway, Folio 26535 (“the

Folio”). The Folio indicates that Henry Greally of 65, Henry Street, Galway is full owner.

The charge in favour of Bank of Scotland (Ireland) Ltd has been registered since 21 April

2005. Note 10 on the Folio, which is dated 24 April 2015, indicates that Ennis Property

16. Mr Hanly has also exhibited two loan agreements entered into as between Bank of

Scotland (Ireland) Ltd and Mr Greally. The first of these loan agreements is dated 13

November 2003, and is for a sum of €450,000. The “purpose” of the loan is stated to be

mortgage redemption (€190,000), and capital expenditure (€260,000). The loan

agreement is addressed to Mr Henry Greally at 84 Knocknacarra Park, Salthill, Galway.

The security is stated to be a first specific charge over the freehold land and premises

17. The second loan agreement is dated 26 October 2006, and is for the sum of €110,000.

Again, the loan offer is addressed to Mr Henry Greally, 84 Knocknacarra Park, Salthill,

Galway. The security for the loan is stated to be, inter alia, an extension of Bank of

Scotland (Ireland) Ltd’s first specific charge over the freehold land and premises

18. Mr Hanly has set out in detail the circumstances in which the mortgagee’s interest came

to be transmitted to Ennis Property Finance DAC. In brief, the assets of Bank of Scotland

(Ireland) Ltd were transferred by cross-border merger to Bank of Scotland plc on 31

December 2010. By purchase deed dated 29 November 2014, Bank of Scotland plc

agreed to sell the purchased assets (as defined in the purchase deed) to ELQ Investors II

Ltd. By deed of novation dated 12 December 2014, Ennis Property Finance Ltd was

substituted in place of ELQ Investors II Ltd. By deed of assignment dated 20 April 2015

between Bank of Scotland plc and Ennis Property Finance DAC, the former lawfully

assigned all its rights and obligations in the purchased assets to the latter. By a transfer

of charge form (Form 56), also dated 20 April 2015, Bank of Scotland plc lawfully

19. The relevant contractual documentation has been exhibited, albeit in redacted form, as

part of Mr Hanly’s affidavit. As explained under the next heading below, Mr Greally has

20. The defendant, Mr Greally, has filed an affidavit sworn herein on 31 October 2019.

Although this affidavit is headed up with the title and record number of the within

proceedings, it appears that most, if not all, of the content of same is directed towards

separate summary proceedings which have been taken by Ennis Property against Mr

Greally. Thus, for example, paragraph 2 of Mr Greally’s affidavit states that he is making

the affidavit in response to the grounding affidavit of Mr John Burke. Of course, the

affidavit grounding the application for an order for possession in the within proceedings

has been sworn by a different deponent, namely Mr Jonathan Hanly. It seems that Mr

21. Mr Greally’s affidavit goes on, then, at paragraph 4 to complain that the sum of money

alleged to be due and owing has not been fully explained to him in any breakdown of the

sums which are being sought using the summary judgment procedure. This, again,

22. At paragraphs 6 to 14 of his affidavit, Mr Greally disputes the validity of “the personal

guarantees” which he says have been produced as exhibits. These averments make no

sense in the context of the proceedings for an order for possession in circumstances

where no “personal guarantees” have been exhibited. Rather, the application for an order

for possession is grounded on the two loan agreements which are said to have been

entered into by Mr Greally himself. These loan agreements have been described earlier,

23. At paragraph 22 of his affidavit, Mr Greally refers, for the first time. to the within

“22. I say and believe that the Plaintiff has been reckless in issuing proceedings were

the paperwork in relation to the alleged debt is not correct and that they have also

brought High Court Proceedings for possession in relation to a property that I am

not the legal or beneficial owner based on the documentation from the Property

24. No explanation has been provided as to why it is said that Mr Greally is not the legal and

beneficial owner. Nor is any explanation offered for how it is that the Folio which has

been exhibited in behalf of Ennis Property (County Galway, Folio 26535) indicates that Mr

Greally is the full owner. It has not been suggested, for example, that the Folio is

25. An affidavit has also been sworn on behalf of Mr Greally by his solicitor, Gerardine

Costello. Again, the content of this affidavit appears to be directed to the summary

26. The final affidavit filed is that of John Burke. He identifies himself as a director of Ennis

Property Finance DAC. Mr Burke has exhibited so-called “hello” and “goodbye” letters.

27. As indicated by the Supreme Court judgment in Irish Life and Permanent Plc v. Dunne

[2015] IESC 46; [2016] 1 IR 92, a court hearing an application for an order pursuant to

section 62(7) of the Registration of Title Act 1964 must ask itself whether, as a matter of

law, it can properly be said that the principal monies secured by the registered charge

28. The case made on behalf of Ennis Property is that it has succeeded to the mortgagee’s

interest under the 2004 Mortgage, and that the monies advanced under the two loan

agreements of 13 November 2003 and 26 October 2006, respectively, are secured by the

2004 Mortgage. The affidavits of Mr Hanly and Mr Burke indicate that there has been

default in the payment of instalments under the two loan agreements, and that the

principal monies are now due. The relevant letter of demand dated 22 February 2017 has

29. Mr Greally has not sought to contradict any of this in his own affidavit, and counsel on his

behalf confirmed to the court at the hearing on 27 January 2020 that Mr Greally has not

denied on affidavit having entered into either the two loan agreements or the 2004

30. In the absence of any challenge to the validity of the underlying loan documentation, I

am satisfied that Ennis Property has discharged the onus of proof upon it. See, by

analogy, the judgment of the Supreme Court in Ulster Bank Ireland Ltd v. O’Brien

[2015] IESC 96; [2015] 2 IR 656. That judgment concerned an application for a summary

judgment pursuant to Order 37 of the Rules of the Superior Courts (rather than an

application for an order for possession). The plaintiff bank in that case had sought to

prove the debt by filing an affidavit from a bank employee which exhibited the relevant

loan documentation. The Supreme Court held that the swearing and service of an

affidavit, which makes allegations that a sum is due, can be accepted, in the absence of

denial, where the form and the content of what is deposed to and the exhibits supporting

31. No issue has been taken on behalf of Mr Greally in respect of the transmission of the

mortgagee’s interest from Bank of Scotland (Ireland) to Ennis Property Finance DAC.

32. In the circumstances of the present case, the uncontroverted evidence before the court

establishes that Ennis Property is the owner of the registered charge, and that the

principal monies under the two loan agreements are now due. It appears from the copy

of the 2004 Mortgage which has been exhibited that the power of sale has arisen. I am

satisfied, therefore, that Ennis Property is entitled to an order for possession pursuant to

33. I propose to make an order for possession pursuant to section 62(7) of the Registration of

Title Act 1964. I will hear the parties further on the question of a stay on execution, and

as to costs.

Result: Order for possession granted.

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