ADM Londis Ltd Company v Flynn
| Jurisdiction | Ireland |
| Judge | Ms. Justice Quinn |
| Judgment Date | 06 December 2018 |
| Neutral Citation | [2018] IEHC 690 |
| Docket Number | [RECORD NO. 2012/375SP] |
| Court | High Court |
| Date | 06 December 2018 |
[2018] IEHC 690
THE HIGH COURT
Quinn J.
[RECORD NO. 2012/375SP]
Special circumstances – Certificate of the Examiner – Order 55 Rule 50 of the Rules of the Superior Courts – Claimant seeking an order varying or discharging the Certificate of the Examiner – Whether the facts and events in the case amounted to special circumstances
Facts: The defendant, Mr Flynn, on 18th of January, 2007, granted a mortgage to the claimant, Allied Irish Banks Plc, and AIB Mortgage Bank. The mortgage was registered in the Land Registry on 21st of October, 2009 and attached to part of the property of the defendant comprised in Folio 684 Co. Waterford. On 20th of April, 2011, the claimant obtained judgment against the defendant for the sum of €550,000. On 28th of June, 2011, the plaintiff, ADM Londis Ltd. Co., obtained judgment against the defendant for the sum of €157,000. On 25th of August, 2011, the plaintiff registered a judgment mortgage against the defendant’s interest in Folio 684. On 15th of February, 2013, the claimant registered a judgment mortgage against the same Folio. On 3rd of December, 2012, a well charging order and order for sale was made by the High Court which inter alia directed the Examiner to conduct an enquiry as to encumbrances. Ultimately the property comprised in Folio 684 was sold for €110,000. Following the publication of an advertisement for incumbrancers, the sitting to prove claims was first listed before the Assistant Examiner of the High Court on 13th of September, 2013. At the first sitting, the Examiner was not satisfied with the proofs submitted on behalf of the claimant. The claimant averred that the Examiner directed that a supplemental affidavit be filed addressing three distinct matters, namely to exhibit the mortgage deed, to produce a copy of the judgment obtained and to clarify the description of the entry on the Folio. The sitting was adjourned to 8th of October, 2013. The Claimant filed a supplemental affidavit on 13th of September, 2013, and further sitting took place before the Examiner on 8th of October, 2013. At the adjourned sitting the Examiner did not admit the claim of the claimant. No further proofs were submitted by the claimant and no further sitting to prove the claims was held. The plaintiff advanced proceedings before the Court securing on 19th of May, 2014, the order for possession, and ultimately, the sale of the property for €110,000. The sale of the property having completed, on 25th of September, 2018, notice was issued of a sitting before the Examiner on 3rd of October, 2018 to settle the Certificate of Encumbrances. Following that sitting, the Certificate of the Examiner was issued on 3rd of October, 2018, stating that the Claimant’s claim had “not been admitted pursuant to the ruling of the Assistant Examiner dated 8 October, 2013.” On 9th October, 2018 an application was filed by the claimant pursuant to Order 55 Rule 49 to discharge or vary the certificate. When that application came before the Examiner on 22nd of October, 2018, the Examiner ruled that the application was incorrectly before him and that an application should be brought before the Court itself under Order 55 Rule 50. The claimant submitted that there could be no circumstances in which its mortgage granted 18th of January, 2007, and registered on 21st of October, 2009, could cede priority to the plaintiff’s judgment mortgage registered later in time. The claimant submitted that when the plaintiff was progressing the proceedings it did so at all times on notice that the claimant was relying on its mortgage. It referred also to its appearances before the Examiner, and before the Court when the well-charging possession and sale proceedings were listed.
Held by Quinn J that the facts and events in the case did not amount to special circumstances which warranted the discharge or variation of the Certificate.
Quinn J held that the application would be dismissed.
Application dismissed.
This is an application by Allied Irish Banks Plc (‘the Claimant’) for an order pursuant to Order 55 Rule 50 of the Rules of the Superior Courts to vary or discharge the Certificate of the Examiner issued in these proceedings dated 3rd of October, 2018. The relevant provisions of Order 55 are as follows:-
Rule 44: -
‘The result of any proceedings before the Examiner shall be stated in the form of a concise certificate to the Court. Unless an order to discharge or vary the same is made, the certificate shall be deemed to be approved and adopted by the Court.’
Rule 48: -
‘Any party or other person interested may, before the proceedings before the Examiner are concluded, take the opinion of the Court upon any matter arising in the course of the proceedings upon notice given to all proper persons. Such notice shall be in one of the Forms Nos. 14 and 15 in Appendix G.’
Rule 49: -
‘Every certificate, with the accounts (if any) to be filed therewith, shall be transmitted by the Examiner to the Central Office and there filed, and shall thenceforth be binding on all parties to the proceedings unless discharged or varied upon application by motion of which notice shall have been served within eight days of such filing; provided that in case of an application to discharge or vary any certificate to be acted upon by the Accountant without further order, or any certificate on passing receivers' or liquidators' accounts, the notice shall be served within three days after the filing of the certificate.’
Rule 50: -
‘The Court may, in special circumstances, upon an application by motion for the purpose, direct a certificate to be discharged or varied at any time after the same has become binding on the parties.’
On 18th of January, 2007, the defendant granted a mortgage to the Claimant and AIB Mortgage Bank. The mortgage was registered in the Land Registry on 21st of October, 2009 and attached to part of the property of the defendant comprised in Folio 684 Co. Waterford.
On 20th of April, 2011, the Claimant obtained judgment against the defendant for the sum of €550,000.
On 28th of June, 2011, the plaintiff obtained judgment against the defendant for the sum of €157,000.
On 25th of August, 2011, the plaintiff registered a judgment mortgage against the defendant's interest in Folio 684.
On 15th of February, 2013, the Claimant registered a judgment mortgage against the same Folio.
In 2012, the Plaintiff commenced these proceedings. On 3rd of December, 2012, a well charging order and order...
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