Carlisle Mortgages Ltd v Heagney
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 01 March 2019 |
| Neutral Citation | [2019] IEHC 108 |
| Docket Number | 2009 No. 1367 SP |
| Court | High Court |
| Date | 01 March 2019 |
[2019] IEHC 108
THE HIGH COURT
Simons J.
2009 No. 1367 SP
Order of inspection – Possession – Unregistered lands – Plaintiff seeking an order of inspection – Whether the mortgage deed, upon which an application for possession was grounded, sufficiently identified which lands were the subject of the mortgage
Facts: The plaintiff, Carlisle Mortgages Ltd, applied to the High Court for an order of inspection pursuant to Order 50, rule 4 of the Rules of the Superior Courts. The application was made in the context of proceedings which sought inter alia the possession of unregistered lands. The inspection was sought by the plaintiff in support of an argument that the mortgage deed, upon which the application for possession was grounded, sufficiently identified which lands were the subject of the mortgage. The perceived necessity to do this arose in circumstances where one of the principal grounds of defence was that the mortgage was deficient in that regard.
Held by Simons J that the application for inspection was well made. Simons J noted that the inspection sought related to the central issue which was in dispute in the proceedings. Insofar as the objection of the defendant, Mr Heagney, based on the grounds of delay was concerned, Simons J thought that if such an objection was to be pursued, then the appropriate course would be for the defendant to bring an application to strike out the proceedings for inexcusable and inordinate delay. Simons J held that the issue of delay was not something which could properly be dealt with in the context of an application for inspection.
Simons J held that he would make an order directing the defendant to allow the plaintiff and/or his nominated expert to enter upon the lands identified in the Notice of Motion and to be permitted to carry out an inspection and survey thereof. Simons J held that he would hear counsel as to the precise form of the order and, in particular, as to whether any conditions in terms of the time and date of inspection should be attached. Simons J held that he would also hear counsel on the issue of costs, and as to whether this was a case where costs of the application for inspection should be made costs in the cause.
Application granted.
This judgment concerns an application for an order of inspection pursuant to Order 50, rule 4 of the Rules of the Superior Courts. The application is made in the context of proceedings which seek inter alia the possession of unregistered lands. The inspection is sought by the Plaintiff in support of an argument that the mortgage deed, upon which the application for possession is grounded, sufficiently identifies which lands are the subject of the mortgage. The perceived necessity to do this arises in circumstances where one of the principal grounds of defence is that the mortgage is deficient in this regard.
For the reasons set out in detail below, I think that the application for inspection is well made. The inspection sought relates to the central issue which is in dispute in the proceedings. Insofar as the Defendant's objection based on the grounds of delay is concerned, I think that if such an objection is to be pursued, then the appropriate course would be for the Defendant to bring an application to strike out the proceedings for inexcusable and inordinate delay. The issue of delay is not something which can properly be dealt with in the context of an application for inspection.
The within proceedings were instituted by way of Special Summons on 29 October 2009. The principal relief sought is an order of possession in respect of certain lands described in the schedule to the summons. The title to some of these lands is registered, and the title to the balance is unregistered.
The application for possession is grounded upon a deed of mortgage dated 4 November 2002 made between the Plaintiff and the Defendant (‘the Mortgage’). The Mortgage identifies three parcels of land. These are defined as ‘the property’ for the purposes of the Mortgage.
The dispute in the present proceedings centres largely on whether the second parcel of lands is adequately identified. It is necessary, therefore, to set out the relevant provision of the Mortgage in full as follows.
‘WHEREAS the said terms and conditions include a security to be granted by the Borrower over:–
(a) ALL THAT AND THOSE all of the lands comprised in Folio 37054 of the Register, County Galway and
(b) ALL THAT AND THOSE part of the lands of the townland of Tully containing acres or thereabouts statute measure together with part of the lands of Reaskmore containing 47 acres and 0 roods and 25 perches or thereabouts statute measure, and
(c) ALL THAT AND THOSE part of the lands of the townland of Budellagh (known as the lands of Lisanacody) containing 29 areas 2 roods 35 perches or thereabouts statute measure
all of which lands are delineated on the map attached hereto and thereon surrounded by a red verge line (which said lands and premises are hereinafter called “the property”);’.
The description of the second parcel of lands, at subparagraph (b), appears to be missing a figure for the acreage of the lands.
The description of the second parcel of lands as per the schedule to the Special Summons is slightly different. Insofar as relevant, the schedule reads as follows.
‘SCHEDULE
[…]
ALL THAT AND THOSE part of the lands of the townland of Tully containing 107.682 acres or thereabouts statue (sic) measure together with part of the land of Reaskmore containing 47 acres and 0 roods and 25 perches or thereabouts statute measure and
[…]
all of which lands are delineated on the map attached to the Mortgage dated the 4th day of November 2002.’
As appears, the lands are now described as containing an area of 107.682 acres. No such figure appears in the Mortgage.
This discrepancy has been relied upon by the Defendant to make an argument that the security over the lands at Tully is unenforceable. See, in particular, the Defendant's affidavit of 30 June 2010, paragraphs 28 to 31.
Following an exchange of affidavits, the High Court (Dunne J.) made an order on 4 April 2011 directing that the proceedings stand adjourned for plenary hearing as if the proceedings had been commenced by plenary summons. The order further directed the Plaintiff to deliver a Statement of Claim within three weeks, and the Defendant to deliver a Defence within three weeks from the delivery of the Statement of Claim.
The Plaintiff duly delivered its Statement of Claim on 29 June 2012. The position in relation to the lands of the town land of Tully is elaborated upon as follows.
(i) The reference to ‘part of the lands of the town land of Tully containing acres or thereabout statute measure’ in the Mortgage meant and was intended to mean and to refer to a parcel of 67 acres which came to be held by the Defendant.
(ii) These 67 acres had formed part of certain lands which were, prior to 2002, held by the Defendant and his brother as tenants in common. The Defendant represented at the time of the loan application that he had reached an agreement with his brother to partition the lands, and produced an (unstamped) deed of conveyance and transfer under which he was to obtain some 67 of the 107.682 acres. It was a term of the loan agreement that the Defendant complete, stamp and impress the deed of conveyance between himself and his brother.
(iii) The Defendant became entitled to 67 acres of the lands in the town land of Tully by virtue of a deed dated 30 October 2002 and a deed of rectification dated 20 February 2004.
The Statement of Claim seeks the following relief in respect of these lands.
‘An order for possession of ALL THAT AND THOSE part of the lands of the townland of Tully Barony of Longford in the County Galway containing 67 acres or thereabouts statute measure as more particularly identified in a map attached to this Statement of Claim and thereon surrounded with a red verge line and hatched orange.’
The Defendant delivered his Defence on 20 September 2012. The Defendant maintains the position that the lands are not properly described. See in particular, 9, 10 and 14 of the Defence.
‘9. It is admitted that the Defendant became entitled to 67 acres of lands in the townland of Tully by virtue of a Deed of Partition and Conveyance dated 30th October 2002 and a Deed of Rectification dated 20 February 2004. No other admissions are made in respect of paragraph 8 of the Statement of Claim.
10. The Defendant makes no admissions in respect of paragraph 9 of the Statement of Claim and the execution of any Deed of Mortgage/Charge. The Plaintiff is placed on strict proof. It is denied that the lands were identified with adequate or sufficient particularity by way of map attached to the Deed of Mortgage.
[…]
14. It is denied that “the reference to part of the lands of the townland of Tully containing acres” constituted a sufficiently accurate description of land to...
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