Corbett v Coffey Construction Ireland Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 07 February 2017
• Neutral Citation: [2017] IEHC 352
• Docket Number: [2016 No. 6967 P.]
• Court: High Court
• Date: 07 February 2017

[2017] IEHC 352

THE HIGH COURT

Humphreys J.

[2016 No. 6967 P.]

BETWEEN

MICHEAL CORBETT

AND

KEVIN CORBETT

PLAINTIFFS

AND

COFFEY CONSTRUCTION IRELAND LIMITED

DEFENDANT

Land & Conveyancing – Registration of judgment mortgage – Priority of charge

Facts: The plaintiffs, by way of two motions, sought certain reliefs from the Court. In the first motion, the plaintiffs sought a declaration that a certain charge executed in favour of the first creditor and lodged for registration subsequent to the registration of a judgment mortgage by the defendant might be registered in priority to the judgment mortgage. In the second motion, the plaintiffs sought leave to amend the endorsement of claim by the addition of a relief.

Mr. Justice Richard Humphreys dismissed the first motion. The Court held that the declaratory relief sought by the plaintiffs was substantive in nature and it could not be granted by way of a motion. The Court observed that there were exceptional circumstances under which the relief was granted by way of a motion. The Court noted that substantive relief in a plenary action should generally be sought at the hearing. The Court held that the plaintiffs needed to join the second creditor to the proceedings in case they wished to proceed with the second motion for amendment.

RULING of Mr. Justice Richard Humphreys delivered on the 7th day of February, 2017

1 The issue between the parties relates to priority as between two creditors over a particular piece of registered land, Nos. 9 and 10 Copley Street in Cork City. The first creditor, Ulster Bank provided facilities to the plaintiffs in October, 2010 and June, 2011, the benefit of which was subsequently transferred to a company called LSREF III Achill Investments Ltd. The other creditor, Coffey Construction Ireland Ltd., obtained a judgment against the plaintiffs in October, 2010 and registered a judgment mortgage in May, 2011.

2 The plaintiffs have brought two motions. The first motion dated 16th January, 2017 seeks a declaration that the charge dated 18th August, 2016, executed by the plaintiffs in favour of LSREF III Achill Investments Ltd. in respect of Nos. 9 and 10 Copley Street, Cork and lodged for registration subsequent to the registration of a judgment mortgage by the defendant, affecting the interests of the plaintiffs in the said property may be registered in priority to the judgment mortgage. The second motion, dated 2nd February, 2017, seeks an order granting the plaintiffs leave to amend their endorsement of claim by the addition of a relief in similar terms.

3 There are three preliminary issues I am dealing with at this stage. First of all, whether the amendment should be permitted either in principle or at all. Secondly, whether the relief in the motion of 16th January, 2017 is proper to be sought by way of a motion. And thirdly, if the matter is properly to be determined by the court, whether LSREF should...