Allied Irish Banks Plc v Kellie Greene [Otherwise Kellie Byrne]
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 22 November 2022 |
| Neutral Citation | [2022] IEHC 626 |
| Court | High Court |
| Docket Number | 2020 No. 276 SP |
[2022] IEHC 626
2020 No. 276 SP
THE HIGH COURT
Property – Order for sale – Land and Conveyancing Law Reform Act 2009 s. 31 – Plaintiff seeking to recover the first defendant’s debt by way of an order for sale of the property – Whether an order for sale should be made pursuant to s. 31 of the Land and Conveyancing Law Reform Act 2009
Facts: The first and second defendants, Ms Greene and Mr Greene, were the registered co-owners of a dwelling house at 19 Hamlet Avenue, Chieftain’s Way, Balbriggan (the Property). As appeared from the principal judgment delivered in the proceedings on 19 August 2022 ([2022] IEHC 493), the High Court held that the first defendant’s interest in the Property stood charged with a debt in a specified sum, which was owed by the first defendant to the plaintiff, Allied Irish Banks plc; the plaintiff bank was, therefore, entitled to a declaration that a specified sum (together with interest) was well charged on the first defendant’s interest in the Property. It was further held that the second defendant’s interest in the Property had not been charged with the debt. The plaintiff bank sought to recover the first defendant’s debt by way of an order for sale of the Property made pursuant to s. 31 of the Land and Conveyancing Law Reform Act 2009. The intention was that the Property would be sold, and the debt owed to the plaintiff bank would then be discharged (in whole or in part) from that half of the sale proceeds which was referable to the first defendant’s interest in the Property; the other half of the sale proceeds would be paid over to the second defendant.
Held by Simons J that it would be just and equitable to make an order for sale. He held that the plaintiff bank was entitled to enforce its security as against the first defendant’s interest in the property, and the position of the second defendant would be protected by directing that he be paid one half of the net sale proceeds. Simons J made a declaration that, as of 16 October 2020, the sum of €413,188.25 (together with accruing interest pursuant to the Courts Act 1981) was well charged on the first defendant’s interest in the Property. He held that this sum was well charged upon the lien registered pursuant to s. 73 of the Registration of Deeds and Title Act 2006. He held that in default of payment of the said sum (together with accrued interest) within three months of the date of service of the court order on the defendants, the following orders pursuant to s. 31 of the 2009 Act would take effect: (1) the Property was to be sold at such time and place, and subject to such conditions of sale, as should be settled by the High Court; (2) The Examiner’s Office was to take an account of incumbrances, if any, affecting the Property, and to make inquiries as to the respective priorities of any such incumbrances; (3) one half of the net sale proceeds (that is, net of any prior incumbrances and net of the costs of sale) was to be paid to the second defendant or to his credit.
Simons J held that, as to legal costs, there would be no order made in circumstances where the plaintiff bank was only partially successful in the proceedings, in that it failed to obtain a well charging order against the second defendant’s interest in the Property.
Order for sale granted.
Keith Rooney for the plaintiff instructed by Mason Hayes and Curran LLP
No appearance by either defendant
JUDGMENT of Mr. Justice Garrett Simons delivered on 22 November 2022
This judgment addresses the question as to whether an order for sale should be made pursuant to Section 31 of the Land and Conveyancing Law Reform Act 2009. This judgment is supplemental to the principal judgment delivered in these proceedings on 19 August 2022. The principal judgment bears the neutral citation [2022] IEHC 493.
Section 31 of the Land and Conveyancing Law Reform Act 2009 confers a discretion on the court to make orders affecting land which is in co-ownership. The orders which may be made under the section include the following:
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(a) an order for partition of the land amongst the co-owners,
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(b) an order for the taking of an account of incumbrances, if any, affecting the land and the making of inquiries as to the respective priorities of any such incumbrances,
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(c) an order for sale of the land and distribution of the proceeds of sale as the court directs,
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(d) an order directing that accounting adjustments be made as between the co-owners,
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(e) an order dispensing with consent to severance of a joint tenancy as required by Section 30 where such consent is being unreasonably withheld,
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(f) such other order relating to the land as appears to the court to be just and equitable in the circumstances of the case.
An application for an order under the section may be made by any person having an estate or interest in land which is co-owned (whether at law or in equity). A “ person having an estate or interest in land” is defined for the purposes of the section as including a mortgagee or other secured creditor, a judgment mortgagee or a trustee.
The first and second defendants are the registered co-owners of a dwelling house at 19 Hamlet Avenue, Chieftain's Way, Balbriggan (“ the Property”).
As appears from the principal judgment, this court held that the first defendant's interest in the Property stands charged with a debt in a specified sum, which is owing by the first defendant to the plaintiff bank. The plaintiff bank is,...
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