ACC Bank Plc v Lynn

• Jurisdiction: Ireland
• Judge: Mr Justice Charleton
• Judgment Date: 21 December 2015
• Neutral Citation: [2015] IESC 100
• Docket Number: [S.C. No. 488 of 2006],Record number: 2004/477Sp
• Court: Supreme Court
• Date: 21 December 2015

Between

ACC Bank Plc

Plaintiff/Respondent

and

Gerard Lynn

Defendant

and

Kathleen Lynn

Defendant/Appellant

[2015] IESC 100

Laffoy J

Charleton J

O'Malley J

Record number: 2004/477Sp

Appeal number: 488/2006

An Chúirt Uachtarach

The Supreme Court

Property & conveyancing – Mortgage – Judgment – Priority of judgment mortgage over interest of defendant – Whether order for sale at behest of judgment creditor possible with joint tenancy

Facts: The respondent had obtained judgment in relation to a mortgage over a property in Westmeath. The High Court had issued declarations that the mortgage was well charged over the interest of the 1st defendant, who held the property as joint tenants with the 2nd defendant. The 2nd defendant now sought to appeal claiming that the High Court had fallen into error by considering it had jurisdiction to order sale in lieu of partition.

Held by Charleton J, the other Justices concurring, that the appeal would be allowed. Having considered the submissions of the parties, and the case law on the matter, the Court was satisfied that to permit the High Court order to stand would result in affirming an order that the High Court did not have the jurisdiction to make. Commenting generally, Charleton J stated that the raising of novel points on appeal could not be allowed to recast the litigation question entirely.

Judgment of Mr Justice Charleton delivered on Monday the 21st December, 2016.

1 In the special indorsement of claim on the special summons, originally returnable for 1st December 2005, the respondent ACC Bank sought from the High Court declarations that a judgement mortgage registered by the bank over Folio 6027F of the Register of Freeholders, County Westmeath stood well charged over the interest of Gerard Lynn, the 1st named defendant in the said lands. A declaration was also sought that this defendant owed the bank the sum of €27,237.87 as of 7th April 2003 as well as seeking an account, sale of the lands, possession and an enquiry, an order was sought 'providing for the partition of the said land and premises.'

2 The matter came on for hearing on the ordinary Monday list before McKechnie J on 5th December 2005. He made an order declaring that the principal monies secured by the judgment mortgage stood 'well charged on the first defendant's interest in the said land and premises' and further ordered that in default of payment by the first defendant 'the said land and premises be sold in lieu of partition at such time and place and subject to such conditions of sale as shall be settled by the Court'.

3 Gerald Lynn and Kathleen Lynn are husband and wife. The relevant land incorporates the family home in Mullingar. They are joint tenants of the registered freehold land. Kathleen Lynn is the sole appellant, though clearly the outcome of the appeal also affects her husband.

Issue on appeal

4 Kathleen Lynn seeks to argue a new point on the appeal and this point appears in the notice of appeal thus:

The High Court erred in law in determining that it had jurisdiction to order sale in lieu of partition at the suit of the judgement creditor whose judgement mortgage affect the interest of one only of two joint tenants of registered freehold land.

This matter is not comprehensible save in the context of a chronology of events. It is in accordance with that sequence that the correctness of the judgment of McKechnie J must be analysed. The note agreed by counsel of his judgment of 5th December 2005 reads:

The question of whether a judgement creditor could obtain an order for sale in lieu of partition over registered lands held by joint tenants (as is the case here) was the subject of some uncertainty for a long period. The recent judgement of the High Court in Irwin v Deasy (unreported, Finlay Geoghegan J 1st March 2004) opened to me by [counsel for the bank] establishes that he can. I rejected the argument that there is an error in the affidavit of Tara Glynn sufficient to withhold the well-charging order. Even if the matter was dealt with on the basis of section 3 of the Partition Act 1868 (as opposed to section 4) an order for sale should be made. I will make orders in terms of paragraphs 1, 2, 3, 4, and 6 of the summons, together with an order for costs to the plaintiff with an order for taxation. I will put a stay on the orders until 31st March 2006

By way of explanation, the affidavit of Kathleen Lynn referred to is the affidavit of judgment on foot of which the judgment mortgage was registered on Folio 6027F of County Westmeath.

Chronology

5 A chronology in this case is best set out in linear form.

• 7th April 2003, ACC Bank obtain judgment against Gerald Glynn in the sum of €23,638.55 in the Circuit Court.

• 25th August 2003, a judgment mortgage is registered as against his interest in the land.

• 1st March 2004, the first judgment in unrelated case of Irwin v Deasy [2004] 4 IR 1 is given by Finlay Geoghegan J. As a precedent, that decision was followed in this case in the High Court. This decision was to the effect that where there was more than one co-owner of a property that the other co-owner should be joined in the special summons proceedings. Nonetheless, the decision was to the effect that there was a jurisdiction to make an order for sale instead of an order for partition under sections 3 and 4 of the Partition Act 1868.

• 5th December 2005, judgment of McKechnie J in the High Court in this case.

• 31st January 2006, the second judgment in Irwin v Deasy is given by Laffoy J in the High Court. This decided that a judgment creditor who had a judgment mortgage registered against the interest of one co-owner in registered land did not have any sufficient interest to maintain an action for the partition of such lands and, accordingly, in the absence of legislative intervention, the High Court had no jurisdiction to order a sale instead of ordering partition of the entirety of the co-owned registered land to enforce a judgment mortgage registered only against the interests of one co-owner.

• 13th December 2006, after over a year had passed from his judgment, the order of McKechnie J is perfected.

• 21st December 2006, Kathleen Lynn files a notice of appeal to this Court. That notice specifically calls in aid the point of the decision of Laffoy J in Irwin v Deasy.

• 1st December 2009, the Land and Conveyancing Law Reform Act 2009 comes into force.

• 13th May 2011, this Court upholds the judgment of Laffoy J in Irwin v Deasy; both the High Court and the Supreme Court judgment are reported at [2011] 2 IR 752.

• 24th August 2015, as of midnight on this date 12 years have passed since the registration of the judgement mortgage and, without deciding the matter, it would appear that any claim to enforce same is statute barred.

• 16th December 2015, this case comes for hearing before this Court with both sides represented by solicitor and counsel.

No dispute

6 ACC Bank does not contest that in the event that the appellant Kathleen Lynn is entitled to, as is sought, raise the same point as in Irwin v Deasy [2011] 2 IR 752, that the High Court lacked jurisdiction and that the order of McKechnie J cannot stand. It must be remembered that a judgment mortgage is purely an order in execution. It is subject to particular safeguards that are set down in law over centuries.

7 What is in dispute is that ACC Bank opposes the...