ACC Bank Plc v Vincent Markham and Mary Casey

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 12 December 2005
• Neutral Citation: [2005] IEHC 437
• Court: High Court
• Docket Number: [2005 No. 2 SP]
• Date: 12 December 2005

[2005] IEHC 437

THE HIGH COURT

[2005 No. 2 SP/2005]

ACC BANK PLC v MARKHAM & CASEY

BETWEEN

ACC BANK PLC

PLAINTIFFS

AND

VINCENT MARKHAM AND MARY CASEY

DEFENDANTS

JUDGMENT MORTGAGE (IRELAND) ACT 1850

JUDGMENT MORTGAGE (IRELAND) ACT 1858

FAMILY LAW ACT 1995 S9

S (A) v S (G) 1994 1 IR 407 1994 2 ILRM 68

BELLAMY v SABINE 1857 1 DE G & J 566

GILES v BRADY 1974 IR 462

JUDGMENTS (IRELAND) ACT 1844 S10

MURPHY & MCCORMACK, IN RE 1930 IR 322

STRONG, IN RE 1940 IR 382

REGISTRATION OF TITLE ACT 1964 S71(4)

TEMPANY v HYNES 1976 IR 101

Abstract:

Land law - Judgment mortgage - Lis pendens - Registration of Title Act, 1964 - Whether any interest which the second named defendant may acquire as a result of family law proceedings in the property in respect of which the judgment mortgage was registered would take priority to the judgment mortgage of the plaintiff.

Facts: The plaintiff, who had converted a judgment obtained against the first named defendant into a judgment mortgage against the interest of that defendant in a property, consisting of the family home which was owned by both defendants sought a declaration that the amount of the judgment together with accruing interest was due and further that the judgment mortgage stood well charged over the interest of the first named defendant in the said lands. However, following the separation of the two defendants, who were previously married, the second named defendant instituted family law proceedings and she contended that any interest in the family home which the court may direct to be transferred to her as a result of the family law proceedings would rank in priority to the judgment mortgage in favour of the plaintiff.

Held by Clarke J. in adjourning the case until after the conclusion of the family law proceedings: That the plaintiff as a judgment mortgagee was a volunteer and accordingly was bound by a lis pendens irrespective of whether it had notice of it and irrespective of whether the lis pendens was registered or not. Therefore, any interest which the second named defendant might acquire as a result of the family law proceedings would rank in priority to the interest of the plaintiff under the judgment mortgage by virtue of the fact that the family law proceedings were commenced and in being as of the time of the registration of the judgment mortgage affidavit.

A.S. v G.S. [1994] I.R. 407 followed and applied.

Reporter: L.O'S.

1. Introduction

2 2 1.1 On 29th March, 2004 the plaintiff ("ACC") obtained judgment in the sum of €20,166.96 together with costs in the sum of €380 against the first named defendant ("Mr. Markham"). On 6th July, 2004 in accordance with the provisions of the Judgment Mortgage (Ireland) Acts 1850 to 1858, ACC converted that judgment into a judgment mortgage against the interest on Mr. Markham in a property in the townland of Cappateemore East in Co. Clare. The property concerned is registered land in respect of which Mr. Markham and the second named defendant ("Ms. Casey") are the registered owners. On that basis the judgment mortgage registered by ACC is as against the interest of Mr. Markham only.

3 3 1.2 Interest has continued to accrue on the above debt so that as of 20th December, 2004 the total sum due was €21,744.88 with interest continuing to accrue to date. In these proceedings ACC seeks a declaration that that sum together with continuing interest from 21st December, 2004 are due and that the judgment mortgage to which I have referred stands well charged over the interest of Mr. Markham in the said lands. Given that, even on ACC's case, the judgment mortgage relates only to the interest of Mr. Markham in the lands, the summons goes further and seeks partition of the lands or a sale in lieu of partition so as to enable the interest of Mr. Markham to be disposed of which in turn would enable ACC to receive payment.

4 4 1.3 Mr. Markham and Ms. Casey were married on 29th December, 1990 but have, it would appear, been separated since November 2001. They have four children who range between the ages of six and twelve. It would also appear from the affidavit of Ms. Casey that the property the subject of the judgment mortgage and the subject of these proceedings was the family home of the defendants in which they resided together from approximately 1991 to 2001. It would appear that upon separation both parties left the family home and went to live at separate and different addresses.

5 5 1.4 The matter which gives rise to complication in this case stems from the fact that on 10th March, 2003 Ms. Casey instituted family law proceedings in which she sought an order of judicial separation and various ancillary reliefs. Amongst those ancillary reliefs sought is an order under s. 9 of the Family Law Act 1995 which, if granted, would direct Mr. Markham to transfer to Ms. Casey his entire estate and interest in the family home. Pleadings have been closed in those family law proceedings and it would appear that the case is currently awaiting a hearing date.

6 6 1.5 Mr. Markham has not defended the proceedings with which I am concerned and it does appear, therefore, that prima facie ACC would be entitled to a well charging order over Mr. Markham's interest in the lands. Whether ACC would also be entitled to an order of partition or, more likely, sale in lieu of partition, is a matter which may well need to be argued in due course. However the initial issue which arises is one as and between ACC and Ms. Casey. Ms. Casey contends that any interest in the family home which the court may direct to be transferred to her as a result of the family law proceedings to which I have referred, would rank in priority to the judgment mortgage in favour of ACC. It is accepted by counsel on behalf of ACC that if Ms. Casey is correct in that contention (though he disputes this) then the appropriate course of action would be to adjourn these proceedings until such time as the family law proceedings had been completed and to review the matter in the light of the result of those family law proceedings.

7 7 1.6 If, for example, the court were to direct that the entirety of Mr. Markham's interest in the family home were to be transferred to Ms. Casey (and on the assumption that such a direction or order would have priority over the judgment mortgage) then there would remain no interest in the property left to Mr. Markham and in turn ACC could, in practice, therefore, have no entitlement. Furthermore even if the family law proceedings did not result in the entirety of Mr. Markham's interest in the family home being transferred to Ms. Casey but nonetheless resulted in Ms. Casey having transferred to her some part of Mr. Markham's interest so that she would end up, in that eventuality, with more than 50% of the interest in the family home, that fact could have relevance to the exercise of the courts discretion in respect of partition or sale in lieu thereof.

8 8 1.7 It is, therefore, clear that it is necessary for the court to determine, at this stage, whether any interest in the property which Ms. Casey may obtain as a result of the family law proceedings but which is currently owned by Mr. Markham would rank in priority to the judgment...