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1. By virtue of the charge, in consideration of the sum of £25,000, the Defendant charged all the lands registered on Folio 12583 with payment to the Plaintiff "as more particularly set out on the terms and conditions within the Commitment Letter executed by [the Defendant] on the 18th day of November, 1997". It is acknowledged by the Plaintiff that there is an error in the charge, in that, while in a Commitment Letter dated 18th November, 1994 the Defendant sought and the Plaintiff committed funds (£60,000), the funds were never drawn down.

2. The charge should have referred to a Commitment Letter which was signed on behalf of the Plaintiff on 29th November, 1994 and by the Defendant on 9th December, 1994. In that Commitment Letter a loan of £25,000 to the Defendant for a term of three months was sanctioned. It was provided that interest would be charged during the currency of the term at the rate of 2% per month and that the interest for the three month period would be deducted at draw-down. Should the loan not be repaid in full within the three month term, interest thereafter would be payable in advance at 3% per month on the unpaid balance. In addition to the three months interest in advance, which amounted to £1,500, the Commitment Letter provided for the deduction of a procurement fee of £3,000 and a Broker's fee of £500 at draw-down, so that the nett proceeds of the loan to be paid into the Defendant's hands was £20,000.

3. The nett proceeds of the loan were drawn down, but the loan was not repaid at the end of the three month term, although the Defendant paid the monthly interest at the rate of 3% per month for approximately a year after the termination of the three month term. At the time these proceedings were instituted at the beginning of June 1997, the Plaintiff was claiming that the Defendant owed it £33,500 on his account with it. By this stage, in addition to the disbursements from the loan, which amounted to £5,000 and included £1,500 interest, the Defendant had paid £11,750 in respect of interest to the Plaintiff.

4. The operative Commitment Letter, the Commitment Letter signed by the Defendant on 9th December, 1994, provided as follows:-

5. The Plaintiff is a company registered in England. However, the Plaintiff has invoked the jurisdiction of this Court to enforce the security it claims to have for the Defendant's liability for the loan. That security is land to which the lex situs applies. Therefore, the validity of the loan and the security falls to be determined in accordance with Irish law.

6. The loan having been advanced before the enactment and the coming into operation of the Consumer Credit Act, 1995, while the Moneylenders Acts, 1900 and 1933 were still in force, the question which must be considered is whether the Plaintiff was a "moneylender" within the meaning of both Acts, so that it required a licence under Section 5 of the Act of 1933 to carry on the business of money lending lawfully in this jurisdiction. The stance of the Plaintiff is that, although it did not have a licence under Section 5 of the Act of 1933, it was entitled to operate as an unlicensed moneylender in making the advance to and taking the security from the Defendant.

7. It is clear from the evidence that the Plaintiff's business was at the material time that of moneylender and, indeed, this is acknowledged. Section 6 then went on to exclude certain persons from the definition of "moneylender", namely:-

8. An additional category of exclusion was added to Section 6 by the Moneylenders Act, 1900 [Section 6(f)] Order 1983 (S.I. No. 344 of 1983). This exclusion related to certain classes of Industrial and Provident Societies. This exclusion did not apply to the Plaintiff.

9. The Defendant has filed two affidavits in answer to the Plaintiff's claim for possession. The first was sworn on 22nd October, 1997 and in it the Defendant advanced a number of defences to the Plaintiff's claim but did not allege that the transaction was void. The second was sworn on 20th April, 1998 and filed in Court on that day, the day the Plaintiff's application was heard. In that affidavit the Defendant averred that he had been advised that the loan was void and unenforceable unless the lender had the appropriate licence to act in this jurisdiction and that the charge is also void and unenforceable and is tainted by the loan transaction. The Plaintiff did not seek an adjournment to deal with this averment and I can only assume that the Plaintiff was not taken by surprise by it and had nothing further to say on the point.

10. On the evidence before me, it would appear that the advance to the Defendant was an advance made in this jurisdiction by the Plaintiff, who was a person carrying on the business of moneylending in this jurisdiction without a licence, and in the circumstances was made in contravention of Section 5 of the Act of 1933. Accordingly, the advance is irrecoverable and the security is unenforceable.

11. The Plaintiff's application is refused.