Sterritt, Gregg, as administrators of Forthouse Developments Ltd (In administration) and 1 - Allied Irish Banks Ltd and 2-21 Maura McCarthy and others
| Jurisdiction | Northern Ireland |
| Judge | Burgess J |
| Judgment Date | 2013 |
| Neutral Citation | [2013] NICh 6 |
| Date | 22 February 2013 |
| Court | Chancery Division (Northern Ireland) |
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Neutral Citation No: [2013] NICh 6
Ref:
BUR8681
Judgment: approved by the Court for handing down
Delivered:22/02/13
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
_______
CHANCERY DIVISION (COMPANIES INSOLVENCY)
________
IN THE MATTER OF FORTHOUSE DEVELOPMENTS LIMITED (IN
ADMINISTRATION)
________
AND IN THE MATTER OF THE INSOLVENCY (NORTHERN IRELAND)
ORDER 1989
________
BETWEEN:
GREGG STERRITT, AS ADMINISTRATOR OF FORTHOUSE
DEVELOPMENTS LIMITED (IN ADMINISTRATION)
Applicant;
-and-
1 - ALLIED IRISH BANKS LIMITED
2-21 MAURA McCARTHY AND OTHERS
HIS HONOUR JUDGE BURGESS
[1] The applicant was appointed as administrator of Forthouse Developments
Limited (“the Company”) by notice of appointment dated 12 May 2010.
[2] The Company was incorporated as a Special Purpose Vehicle for the purpose
of developing an apartment complex in Londonderry called “Conar’s Court”. The
Company’s major asset is an apartment block development. The development
comprises three blocks of apartments, with a total of 47 apartments spread over four
floors.
[3] The site on which the development was constructed is comprised in Folio
LY85253 County Londonderry. The Company was registered as owner of that Folio
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by Deed dated the 28 September 2006, which was registered in the Land Registry of
Northern Ireland on 2 March 2007.
[4] The Company sought funding for the development from the first respondent
(the Bank). The Bank sought security from the Company in the form of a Mortgage
Debenture over all the assets and undertaking of the Company, and in the form of a
Legal Charge of the lands and premises comprised in Folio LY85253 County
Londonderry. On 28 September 2006 the Company granted the Bank a Mortgage
Debenture (“the Mortgage Debenture”) and a Legal Charge (“the Mortgage
Charge”) over the land and premises comprised in Folio LY85253 County
Londonderry. It is a requirement that the Mortgage Debenture and Charge should
be registered with the Company’s Registry within three weeks of the day of its
execution, 28 September 2006. In the event the Mortgage Debenture and the
Mortgage Charge were received by the Company’s Register for registration on 7
November 2006 – well out of time. An application was then made to the Court by
the solicitor acting for both the Company and the Bank, Mr Thomas Doherty, for the
time to be extended. Despite the parties up to the time of the hearing making
strenuous efforts to obtain them, no original documents grounding that application
could be produced. In the event the court made a further enquiry and obtained the
original affidavit and Summons. These do not differ from the drafts with which the
court had been furnished, and therefore no further submissions are necessary.
[5] By an Order dated 14 December 2006 Master Kelly purported to extend the
time for registration of the Mortgage Debenture and the Mortgage Charge. I will set
out the terms of that Order below, but no time is mentioned in it, although there is
reference in the Order of the Companies Registrar that the date was the 4th January.
If so, the relevant form (form 402) in respect of both the Mortgage Debenture and the
Mortgage Charge are stamped as having been received by the Company’s Registry
on 5 January 2007 – again out of time. In the event, notwithstanding that this was
out of time, the Registrar of Companies certified the registration of both the
Mortgage Debenture and the Charge but showed the date of its effect as 7 November
2006, the original date the papers had been received – out of time.
[6] For completeness the Mortgage Charge and Mortgage Debenture were
registered in the Land Registry on 2 March 2007. Therefore a search of the Land
Registry before 2 March 2007 would not have disclosed the existence of either the
Mortgage Charge or the Mortgage Debenture: and in relation to the Company’s
Office could not have been ascertained before 5 January 2007 – although on what
date it was actually entered on the Register, and therefore amenable to being
disclosed to anyone making a Company Office Search, is not known to the court.
[7] It will become apparent when I complete the history of the background to this
matter that questions now arise as to the process by which the Mortgage Debenture
and the Mortgage Charge came to be registered in the Companies Office Register.
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