THE HIGH COURT 1988 No.578Sp
IRISH BANK OF COMMERCE LIMITED Plaintiff
DOREEN O'DONOGHUE Defendants
TRANSCRIPT OF JUDGMENT
DELIVERED BY THE HONOURABLE MR JUSTICE DECLAN COSTELLO
ON 10TH MAY 1989
For the Plaintiff: Hugh Geoghegan, SC Frank Clarke, SC John Trainor, BL
Instructed by Noel Smyth & Partners
For the First Defendant: George Brady, SC James J Gilhooly, BL
Instructed by T G McVeigh & Co.
For the Second and Vincent Landy, SC
Third Defendants: Paul Fogarty, BL
Instructed by Brooks
The Plaintiff Bank obtained judgment against the first-named Defendant. (John O'Hara) on 8th February 1984 in the sum of £743,776.16p and costs. An affidavit was sworn on the Plaintiff Bank's behalf on 6th April 1984 pursuant to the provisions of the Judgment Mortgage (Ireland) Act 1850 and filed in the Registry of Deeds on 10th April 1984.
The Plaintiff Bank now seeks to enforce its statutory right as judgment mortgagee, claiming that it has a statutory mortgage over the lands of the first-named Defendant at Killiney, County Dublin.
The first-named Defendant entered into a contract to sell the lands to Vincent O'Donoghue in July 1986, that is, after the date of the judgment mortgage. Mr O'Donoghue has since been in occupation of the lands and was served notice of these proceedings. He appeared at the hearing and sought leave to be added as a Defendant and I made an order on consent so doing. Affidavit sworn by Mr O' Donoghue on 10th July 1988 in this matter stated that the property had been conveyed to the second-named Defendant and two conveyances were exhibited, both of which were unstamped and undated although apparently executed by both parties.
In case any question of priorities might in the future arise, I think I should record the fact that Counsel on behalf of both Defendants stated that the conveyances had not been delivered and that they were held in escrow. Counsel for the second-named Defendant made clear that his standing arose solely from equitable rights arising from the contract for sale.
The first and main ground of defence in these proceedings is that the judgment mortgage affidavit did not comply with the provisions of the 1850 Act and that this invalidates the judgment mortgage. Earlier, a number of criticisms of the affidavit of a most insubstantial nature had been advanced but these were wisely abandoned at the hearing, reliance being placed on only one, namely, the inadequacy of the particulars of the location of the lands given in the judgment mortgage affidavit.
Section 6 of the Judgment Mortgage (Ireland) Act 1850 provides that the affidavit is to specify "the County and Barony, or the Town or County of a City, and Parish, or the Town and Parish, in which the lands ... are situate." In this case the judgment mortgage affidavit, having provided the first-named Defendant's name, address and occupation and the amount of the judgment obtained with costs, went on to state that the first-named Defendant was possessed of "ALL THAT AND THOSE the lands hereditaments and premises known as 'Ashurst', Military Road, Killiney, Borough of Dun Laoghaire, Barony of Rathdown and County of Dublin."
It will be noted that these particulars (a) fail to mention the parish in which the lands are situated but (b) give additional information not required by the section as to the location of the lands, information which quite unambiguously and unmistakably identifies the location of the lands.
It is argued on behalf of the Plaintiff Bank:
(1) that the authorities establish that the section requires that the parish be specified only if the lands are situated in a town and that as the Defendants have failed to establish (the burden of proof being on them) that the lands are situated in a town the judgment mortgage affidavit complies with the section;
(2) that even if this is incorrect the absence of the name of the parish did not in this case invalidate the judgment mortgage.
In support of the first proposition the Plaintiff Bank accepted that there is a High Court decision to the effect that the omission to specify the parish in the judgment mortgage affidavit invalidated the judgment mortgage in that particular case (see: In Re Flannery L1971] I.R. 10). However, it was submitted that that decision only applies when the lands are in a town (see: Dardis and Dunns Seeds Ltd v. Hickey, unreported but quoted in Wylie's Case Book on Irish Land Law, page 479). It was further urged that 'town' for the purposes of the Act means an assemblage of dwellings in two or more parishes in support of which I was again referred to Dardis and Dunns Seeds Ltd v. Hickey and that the Defendants have failed to show that the lands are situated in a town as so defined.
On behalf of the Defendants it was submitted:
(1) that the Act requires that the judgment mortgage affidavit should specify the parish in which the lands are situated and that any decision which limits this requirement is incorrect and should not be followed;
(2) that, in the alternative, it has been established that these premises are situated in a town because (a) the judgment mortgage affidavit refers to them being situated in the Borough of Dun Laoghaire and (b) the Borough of Dun Laoghaire is a town for the purposes of the Local Government Acts and (c) that the meaning of 'town' in the 1850 Act is not an assemblage of buildings in two or more parishes but is to be derived from the meaning of the term in the Acts relating to Local Government in Ireland.
I do not think it is necessary for me to decide whether the omission: in the judgment mortgage affidavit in this case of a reference to the parish in which the lands are situated amounted to non-compliance with the section. Even if it did amount to non-compliance with the section, such non-compliance would not, in my opinion, invalidate the judgment mortgage. The Act does not expressly provide that a judgment mortgage will be invalidated if a judgment mortgage affidavit fails to contain all the particulars which section 6 says it must contain.
To see whether non-compliance with the section will result in invalidity, I think the Court should firstly consider the purpose of the statutory requirement. If the judgment mortgage affidavit actually filed achieves the purpose which the legislature sought to achieve then there is no reason why the Court should construe the section as requiring strict compliance with its provisions, particularly in a case like the present one when to do so would be to offend against both common sense and justice. This approach, I think, accords with the views advanced in a judgment in the House of Lords in a case involving a challenge to a judgment mortgage affidavit on the grounds that the particulars of the defendant's address were not given as required by the section. In his judgment the Lord Chancellor stated: "We have to look to what the object and intention of the Legislature were... (reads) ... registry of judgments." (see: Thorp v. Browne (1867) L.R.2 H.L.220 at 232).
If non-compliance with the section arises from a misdescription then it is very likely that this would be fatal to the judgment mortgage. But if non-compliance arises from a mere omission of a statutory requirement this will not automatically invalidate the judgment mortgage. The purpose of the requirement relating to the location of the lands is to identify with precision the location of the lands affected by the judgment mortgage and to enable persons subsequently dealing with the judgment debtor and his lands to be warned of its existence. The whole affidavit should be looked at, including any additional information it may contain which is not prescribed by the section.If the particulars actually given achieve this purpose then there is nothing in the Statute which would require the Court to invalidate the transaction.
Applying these principles to the facts of this case, I am quite satisfied that, even if the section should be construed as requiring that the parish in which the Defendant's lands are situated should have been inserted in the judgment mortgage affidavit, this omission did not invalidate the judgment mortgage. The affidavit includes particulars of the location of the lands additional to those which were required by the section, that is, the name by which the lands are known ("Ashurst") and the street in which the lands are situated (Military Road). As a result, the affidavit discloses the exact location of the lands and nobody dealing with these lands could in any way be misled by the particulars given in the affidavit.
Perhaps I should add that the need for strict compliance with the provisions of the section relating to the locality of the lands is considerably diminished by the fact, as pointed out in Wylie's Irish Land Law, 2nd Ed. 175, that the Registry of Deeds ceased for several years to put entries in the Index of Lands. So long as the parties are sufficiently described in the affidavit so that accurate entries can be effected in the Index of Names, this will help to ensure that the statutory purposes are achieved.
The second submission on behalf of the Defendants was that a decree should be refused because the Plaintiff Bank had failed to adduce evidence that the judgment mortgage affidavit had been filed in the Central Office as well as in the Registry of Deeds.
Once it has been established, as it has been in this case, that the judgment mortgage affidavit has been filed in the Registry of DeedsĄ, and that there is a sworn averment that the provisions of the 1850 Act have been complied with, I think it is not necessary to prove that the judgment mortgage affidavit had been filed in the Central Office unless the Defendants adduce evidence to suggest that this has not been done. In any event, if any doubt should arise, the Court should adjourn the matter so that it can be resolved as any other course would be to determine important proprietory rights in the absence of the true facts of the case.
Thirdly, it is argued that the Plaintiff Bank is not entitled to main tain its claim because it has assigned the debt of the first-named Defendant to a third party. It transpired in the course of cross examination of the Plaintiff Bank's Executive Director that the Plaintiff Bank had recently agreed to assign this debt. Whilst the details of the transaction have not been established with precision, it is clear that the assignment is an equitable one and does not impair the Plaintiff Bank's right to sue for the money due to it by the Defendants or to enforce its rights as judgment mortgagees.
In the circumstances, therefore, the Plaintiff Bank is entitled to the relief it claims.