High Court of Ireland Decisions

 
THE HIGH COURT

HC 244/04

[2003 193 SP]

BETWEEN

BILL HOLOHAN

PLAINTIFF

AND SHIELA (OTHERWISE SILE) AUGHEY

DEFENDANT

JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 28^th day of June 2004.

The plaintiff's claim as stated in the special summons is for a declaration that by virtue of the conversion of two judgments dated the 28^th June 1991 and 5^th October 1995 to judgment mortgages a sum of €70,492.29 together with continuing interest from the 29^th April 2003 at the rate of 8% per annum on the principal sums of €2,791.52 and €40,692.68 stands well charged on the interest of the defendant in the lands and premises comprised in Folio No. 4877F of the register of free-holders in the County of Westmeath.

The facts are not in dispute and one legal objection is made namely that in respect of the judgment of the 28^th June 1991 the registration of same as a burden against the defendant's interest in the lands in Folio No. 4877F Co. Westmeath by the depositing of a judgment mortgage affidavit sworn on the 17^th May 2000 was invalid as the judgment had previously been registered as a burden against the defendants interest in the lands comprised in Folio No. 4877F Co. Westmeath on or about the 23^rd November 1993 by the depositing of a judgment mortgage affidavit sworn by John Browne (deceased).

Background facts.

The defendant in these proceedings commenced proceedings in the High Court [1982 No. 4140P] against the late John Browne. In those proceedings two orders for costs were made in favour of Mr. Browne against the defendant herein dated the 28^th June, 1991 and the 5^th October 1995 respectively. Each of those order for costs were taxed; that of the 28^th June 1991 in the sum of £2198.50 (now €2791.52) and that of the 5^th October 1995 in the sum of £32048.09 now (€40692.68).

Mr. Browne died on the 11^th July 1996 and letters of administration were issued on the 2^nd May 1997 to his widow Eileen Browne. By an assignment in writing dated the 17^th February 1999 the said Eileen Browne as legal personal representative of John Browne assigned the benefit of the said orders for costs dated 28^th June 19991 and the 5^th October 1995 to the plaintiff herein in consideration of his claim against the estate of John Browne for professional fees in respect of these said action. The plaintiff was the solicitor acting for John Browne in the said action. Notice of the assignment date of the 20^th May 1999 was given to the defendant herein pursuant to s. 28(6) of the Supreme Court of Judicature Act (Ireland), 1877.

On the 6^th March 2000 by order of the High Court (Kinlen J.) in the said proceedings 1982 No. 4140P the plaintiff was given liberty to swear a judgment mortgage affidavit for the purpose of registering the judgment pursuant to the orders for costs therein of the 28^th June 1991 and the 5^th October 1995 and the proper officer of the High Court was given liberty to accept the said affidavit for registration of the judgment as a judgement mortgage. On the 26^th May 2000 a judgment mortgage affidavit sworn by the plaintiff on the 17^th May 2000 in respect of the two judgments namely the orders for costs of the 28^th June 1991 in the sum of IR£2198.50 and of the 5^th October in the sum of IR£3248.09 was filed in the office of the High Court pursuant to the provisions of s.6 of the judgment mortgage (Ireland) Act, 1850. On the 1^st September 2000 the said judgment mortgages were registered against the defendants interest in the property comprised in Folio 4887F Co. Westmeath by the depositing of an office copy of the said judgment mortgage affidavit.

These proceedings seeking the declaration that the said judgment mortgages are well charged against the defendant's interest in the lands and premises comprised in Folio 4877F Co. Westmeath were commenced on the 8^th May 2003. The plaintiff has sworn two affidavits grounding the application. The second affidavit relates to an error in the computation of the interest claimed in the special summons by reason of the plaintiff having overlooked s.11(6)(b) of the Statute of Limitations 1957 and claiming arrears of interest for a period in excess of 6 years. The declaration sought appears now to be limited to a sum of €64,356.60 in lieu of the €70,429.29 in the Indorsement of Claim.

The solicitor for the defendant has sworn a short affidavit in which he draws the courts attention to the fact that it appears from the copy folio exhibited by the plaintiff in the case that there was registered on the 23^rd November 1993 in the Land Registry an office copy of a judgment mortgage affidavit of John Browne in High Court proceedings [1982 4140P] in respect of the judgment obtained on the 28^th June 1991 in the sum of IR£2198.50 and that he is advised by Counsel that there is a bar against second registration of the same sum.

Submissions

The only submission made by Counsel on behalf of the defendant against the entitlement of the plaintiff to obtain the order sought in the Indorsement of Claim related to his entitlement to obtain a well charging order in respect of the judgment obtained on the 28^th June, 1999 in the sum IR£2,198.50 as this judgment had previously been registered as a burden on the property comprised in Folio 4887F Co. Westmeath by John Browne on the 23^rd November 1993 and that there could not be a second valid registration of the same judgment as a judgment mortgage. Counsel relied for this proposition on the decision in in re Field's Estate 1877 11 I.R. Eq. 456.

In response Counsel for the plaintiff made two separate and distinct submissions:

(1) In reliance upon s.4 of the Judgment (Ireland) Act, 1850, he submitted that as the judgment mortgage registered on the 23^rd November, 1993 had not been registered or re-registered within five years of the 1^st September, 2000 that it was not valid as of the 1^st September, 2000 and hence did not preclude the second registration as being a valid registration.

(2) By reason of the legal assignment of the judgment debt in accordance with the provisions of s.28(6) of the Act of 1877 there was no longer any debt due by the defendant herein to John Browne and accordingly the continuing registration of the judgment mortgage in his favour as a burden on the property in Folio 4877F Co. Westmeath did not preclude the valid registration by the plaintiff herein notwithstanding the principle stated in re Fields Estates.

Conclusions

The judgment mortgage affidavit of the plaintiff herein refers to two separate and distinct judgments obtained by the late John Browne against the defendant herein namely the order for costs of the 28^th June 1991 and the order for costs of the 5^th October, 1995 respectively. The plaintiff is the assignee of the judgment creditor John Browne. Liberty was given to the plaintiff to swear the judgment mortgage affidavit by the High Court (Kinlen J.) on the 6^th March 2000. Precedent for such an order appears to exist. See Patterson v. Duncan 63 I.L.T.R. 76.

From the submissions made on behalf of the defendant there does not appear to be any objection to the validity of the charge created by the registration of the plaintiff's judgment mortgage affidavit in respect of the Order for Costs dated 5^th November 1995. Whilst the Order of 6^th March 2000 refers to judgment in the singular the judgment mortgage affidavit clearly refers to the two distinct judgments. Hence the plaintiff is entitled to relief sought in relation to the sum due on the Order for costs dated 5^th November 1995.

In respect of the amount due on the order for costs of 28^th June 1991 I have concluded that the plaintiff is also entitled to the relief sought for the following reasons.

In in re Field's Estate 1877 11 I.R. Eq. 456 at issue was the validity of a judgment mortgage in respect of a liquidated sum plus costs in circumstances where the judgment for the liquidated sum had previously been registered as a judgment mortgage with the costs expressly waved. The principle relied upon by counsel for the defendant herein was stated by Ormsby J. in the following terms:

"The question which I have to decide is whether or not the second registration is valid. It is not impeached for anything defective in itself; and, therefore, the question of its validity turns on the consideration whether the previous registration of the same judgment was valid; because it is plain that there cannot be two valid registrations of the same judgment against the same lands. . . ."

It appears that the lands the subject matter of the above case were unregistered lands. The categorical statement by Ormsby J. against two valid registrations of the same judgment against the same lands would appear to follow from the effect of the registration of a judgment mortgage against unregistered lands. Later at p. 459 of the judgment he states:

"The effect of the first registration (if it was valid) was to give the creditor all the debtor's estate in the lands; and I cannot see how the second registration could possible have divested out of the creditor the estate which he had so gained by the first registration".

The registration of a judgment mortgage against registered land does not of course effect any transfer of any interest in the lands to the judgment creditor. Under s.71(4) of the Act of 1964 the registration of the judgment mortgage affidavit operates to charge the interest of the judgment debtor with the judgment and the creditor is entitled to "such rights and remedies for the enforcement of the charge as may be conferred on him by order of the court".

Whilst the different effect of the registration of a judgment mortgage as against unregistered lands as compared with registered lands may mean that the principle as stated in re Field's Estate 1877 11 I.R. Eq. 456 may not apply in the categorical terms expressed by Ormsby J. to registered land nevertheless I would accept that there could only be at any given time one charge validly registered against a judgment debtors interests in registered lands in respect of the same judgment entitling the judgment creditor (or his assignee) to a remedy to enforce the charge.

On the facts of this case it is submitted by counsel on behalf of the plaintiff that following the legal assignment to the plaintiff of the benefit of the judgments against the defendant herein by the personal representative of John Browne that there was no longer any debt due by the defendant to the estate of John Browne and accordingly notwithstanding the continued registration of the judgment mortgage affidavit of John Browne there was no debt charged on the defendant's interest in the lands. Whilst counsel for the defendant submitted that notwithstanding an assignment which complies with s.28(6) of the Act of 1877 the debt remained due as between the original judgment debtor and the assignor in this instance the estate of John Browne deceased, he did not refer me to any authority for this proposition. Having considered carefully the effect of an assignment which complies with s.28(6) and the cases referred thereon in Wylie; The Judicature Acts (Ireland) (1906) at p.63 I have concluded the debt due by the defendant on the Order for Costs of the 28^th June 1991 is now a debt now due by the defendant to the plaintiff herein and the plaintiff herein is entitled to give a good discharge for same and there in no longer any debt due thereon by the defendant to the estate of John Browne deceased.

Accordingly it appears to me at the date of registration of the judgment mortgage affidavit of the plaintiff herein against the defendants interest in the lands there was no debt charged on the defendants interest in the lands pursuant to the earlier registration and therefore no bar to the charge created by the registration of the judgment mortgage affidavit of the plaintiff.

I should add, I have concluded that counsel's submission based on s.4 of the (Judgements) Ireland Act, 1850 is misconceived. On a careful reading of the entire Act it appears to me that the provisions of s.4 apply only to judgments entered prior to the date of the passing of that Act and is intended to deal with the pre-existing system of registering judgments against property. In respect of judgments given after the date of the passing of the Act of 1850 s.6 and the subsequent sections only appear to apply. It does not appear to me that s.4 applies to such judgments.

I will hear counsel on the precise terms of the order having regard to the second affidavit of the plaintiff and the fact that there are two judgment mortgages which may more properly warrant separate well charging orders.