Holmes O’Malley Sexton recently acted for the receiver in the High Court case McEnery v Sheahan. This is the most recent in a series of cases including Start Mortgages, Kavanagh v Lynch and EBS v Gillespie, dealing with the impact of the repeal of certain legislative provisions by the Land & Conveyancing Law Reform Act 2009 (the “2009 Act”).
Mr Justice Feeney delivered a decision in respect of the right of a mortgagee to appoint a receiver under Section 19 of the Conveyancing Act 1881 (the “1881 Act”). He held that a mortgagee’s right to appoint a receiver under the 1881 Act is a substantive right as opposed to a procedural right such as the right to apply in a summary manner for possession of a security property – the issue dealt with in the Start Mortgages case. Section 19 of the 1881 Act was repealed by the 2009 Act. Since the right to appoint a receiver under the 1881 Act is one created at the time the mortgage was granted (prior to the 1881 Act’s repeal on the 1st December 2009) the judge held that the right to appoint a receiver incorporated in the mortgage by virtue of Section 19 of the 1881 Act continued despite the repeal of the section.
For further information please contact our Insolvency and Corporate Recovery Unit.