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Case Note: Martin Kevin McGee v (1) Morag Finance Limited and (2) Amber Homeloans Limited [2020] NICh 9

  • Northern Ireland

    10-08-2020

    A recent judgment of the High Court in Northern Ireland has provided a useful reminder to lenders of the law and steps to be taken when registering a transfer of charges at the Land Registry in Northern Ireland. Eversheds Sutherland was delighted to act on behalf of the respondents, Morag Finance Limited and Amber Homeloans Limited, in bringing a long-running legal process to a conclusion.

    Background

    The case arose when Mr McGee (the “Borrower”) raised an objection to an application to register Morag Finance Limited as the legal owner of a charge following a transfer of a portfolio of charges from the original lender, Amber Homeloans Limited. On 16 January 2019 the Registrar of Titles dismissed the Borrower’s objection, following which the Borrower issued a Notice of Appeal to the High Court. Despite some procedural irregularities in relation to the Notice of Appeal, the Court was prepared to deal with the substantive issues of the appeal. Further details regarding the factual circumstances of the case can be found at paragraphs 5 to 34 of the judgment here.

    The Borrower’s objections

    The Borrower’s objections to the transfer of the charge included (i) that Morag Finance Limited had no right to be registered as the owner of the charge; (ii) that there were pending High Court proceedings at the time of the Land Registry application; (iii) that there was no deed of transfer between Amber Homeloans Limited and Morag Finance Limited; and, (iv) that the lodging solicitors for the Land Registry application did not have locus standi to bring the application.

    The respondents argued that Morag Finance Limited was entitled to be registered as owner of the charge because the charge had been assigned by Amber Homeloans Limited by way of a transfer deed, and that the appropriate application had been made to register Morag Finance Limited as owner of the charge in accordance with the Land Registry rules. The respondents also submitted that the Borrower had not raised any valid grounds of objection to registration, whether in law or by reason of any procedural irregularity.

    Decision

    The Court confirmed that where a party wishes to appeal a decision of the Registrar of Titles to the High Court under Section 6 of the Land Registration Act (Northern Ireland) 1970, the appeal must be lodged within 21 days from receipt of the decision, pursuant to Order 55 Rule 14(2) of the Rules of the Court of Judicature. On this occasion, the Borrower served a notice on the Registrar of Titles within 21 days but did not issue the appeal on time in the High Court. However, to allow the Court to determine the case in full the Court was prepared to accept that either the appeal had been issued on time or to retrospectively grant an extension of time to the Borrower.

    Furthermore, despite irregularities in the Borrower’s Notice of Appeal, the Court treated the matter as an appeal against the substantive decision of the Registrar dated 16 January 2019.

    One of the Borrower’s arguments was that the Registrar of Titles should not register the transfer of the charge whilst there were ongoing proceedings in relation to the charge. At the time of the Borrower’s objection, the Borrower was already subject to Order 88 possession proceedings, which at various points over the years, had been stayed or adjourned. The Borrower submitted that the Registrar could not deal with the case whilst those proceedings were ongoing. However, in December 2018, the Chancery Master struck out the possession proceedings (with no order as to costs) to allow the Registrar of Titles to determine the Borrower’s objection free from any live proceedings. Accordingly, by the time the Registrar dismissed the Borrower’s objection in January 2019, the Court was satisfied that there were no pending proceedings preventing the Registrar from effecting the registration and dismissing the Borrower’s objection.

    In relation to the transfer of the charge, the Court confirmed that the transfer could be effected without the consent of the Borrower, as this was expressly provided for in the mortgage deed between Amber Homeloans Limited and the Borrower. By virtue of a mortgage sale agreement and subsequent transfer deed, Morag Finance Limited was therefore found to have lawful standing to apply to the Land Registry to be registered as owner of the charge. When applying to register the transfer of the charge, the Court confirmed that the respondents had followed the relevant provisions under Rule 67 of the Land Registry Rules (Northern Ireland) 1994 and Section 34 of the Land Registration Act (Northern Ireland) 1970.

    Finally, addressing the Borrower’s remaining arguments, the Court confirmed that it is irrelevant that the solicitors acting for a lender may (in future proceedings) differ from those who lodged the Land Registry application, provided that that firm is acting on the instructions of the lender. Furthermore, a document entitled ‘Private Trust’ upon which the Borrower intended to rely, was found to be legally meaningless and devoid of any merit in law or fact.

    Conclusion

    This decision confirms that when an application to register a transfer of charges is made in the correct form (in accordance with the Land Registry rules), provided there is no legal or statutory basis preventing registration, the Registrar of Titles must register the transfer.

    On this occasion, the Court was satisfied that there were no grounds (statutory or otherwise) preventing registration of the transfer and confirmed that the grounds of objection raised by the Borrower did not have any merit in fact or law. The Borrower’s appeal was therefore dismissed, allowing the Registrar to complete the registration of the transfer of the charge.

    For more information, please contact

    Matthew Howse, Dispute Resolution & Litigation Partner - MatthewHowse@eversheds-sutherland.ie

    Conor McAleese, Dispute Resolution & Litigation Solicitor - ConorMcAleese@eversheds-sutherland.ie 

    This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full terms and conditions on our website.

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