AIB Plc (plaintiff) v James Vickers

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 13 March 2009
• Neutral Citation: [2009] IEHC 587
• Court: High Court
• Date: 13 March 2009

[2009] IEHC 587

THE HIGH COURT

[No. 371 SP/1996]

Allied Irish Banks Plc v Vickers

BETWEEN

ALLIED IRISH BANKS PLC

PLAINTIFF

AND

JAMES VICKERS AND CATHERINE VICKERS

DEFENDANTS

AND

ANDREW J. BRENNAN

NOTICE PARTY

RSC O.33 r8

ALLIED IRISH BANKS PLC v DORMER UNREP FINLAY-GEOGHEGAN 13.3.2009 2009 IEHC 586

STATUTE OF LIMITATIONS 1957 S32

STATUTE OF LIMITATIONS 1957 S38

IRWIN v DEASY (NO 2) 2006 2 ILRM 226 2006/30/6354 2006 IEHC 25

REAL PROPERTY

Judgment mortgage

Well-charging order - Order for sale - Settling of claim prior to advertisement for incumbrancers - Application for discharge of order for well-charging order - Application for order directing sale by notice party - Whether jurisdiction to make order - Whether claim of notice party statute-barred - Rights of incumbrancers other than plaintiff - Whether incumbrancer who had not proved entitled to claim - Obligations of plaintiff - Right of plaintiff to vacate order prior to advertisement - Whether inherent jurisdiction to consider application from incumbrancer who had not proved - Limitation period - Discretion - Co-owners of property - Judgment against one owner only - Allied Irish Banks Plc v Dormer [2009] IEHC 586, (Unrep, Finlay Geoghegan J, 13/3/2009) and Irwin v Deasy [2006] IEHC 25, [2004] 4 IR 1 considered - Statute of Limitations 1957 (No 6), ss 32, 33 and 38 - Rules of the Superior Courts 1986 (SI 15/1986), O 33, r 8 - Application refused; order vacating well-charging order and order for sale (1995/233SP - Finlay Geoghegan J - 13/3/2009) [2009] IEHC 587

Allied Irish Banks plc v Vickers

Facts the plaintiff had obtained an order in 1996, declaring that the principal monies secured by its equitable mortgage created by a deposit of title documents stood well charged on the defendants' interest in certain lands. The order declares the amount due; provides for the defendants to come in and dispute the sums declared; and, in default of dispute and payment within three months, orders the sale of the lands and the usual account and inquiry as to incumbrances and their respective priorities. However, prior to any advertisement for incumbrances, the defendants settled the plaintiff's claim. By notice of motion the plaintiff sought an order discharging the well charging order and order for sale and striking out the proceedings. There was a judgment mortgage registered by the notice party in respect of a judgment obtained in 1991. The notice party applied to take over the order for sale pursuant to O. 33, r. 8 of the Rules of the Superior Courts 1986. The notice party had not proved as an incumbrancer or otherwise participated in these proceedings prior to making the current application; and the notice party took no other steps to recover its judgment or enforce the judgment mortgage prior to being notified of the plaintiff's proposed application to discharge the 1996 order in 2008.

Held by Ms. Justice Finlay Geoghegan in dismissing the notice party's application that the notice party was not a person to whom O. 33, r. 8 of the Rules of the Superior Courts 1986 applied. Further, if the Court had an inherent jurisdiction to make an order in favour of an incumbrancer who had not yet proved in proceedings on a basis analogous to O. 33, r. 8, by reason of sections 32 and 38 of the Statute of Limitations 1957 the notice party was not a person who was entitled to an order for sale for the purpose of enforcing the judgment mortgage registered in respect of the judgment debt obtained in 1991. Further, the Court would not exercise its discretion in favour of making an order for sale in favour of the notice party for the same reasons as set out in Allied Irish Banks plc v. Dormer...