Dovebid Netherlands Bv v Phlan T/A Phelan Partnership & O'Byrne

JurisdictionIreland
JudgeMs. Justice Dunne
Judgment Date16 July 2007
Neutral Citation[2007] IEHC 239,[2007] IEHC 131
CourtHigh Court
Date16 July 2007

[2007] IEHC 131

The high court

[No. 380 Sp./2006]
DOVEBID NETHERLANDS BV v PHLAN T/A PHELAN PARTNERSHIP & O'BYRNE

Between

Dovebid Netherlands BV
Plaintiff

and

William Phelan trading as the Phelan Partnership and Denise O'Byrne
Defendants

WYLIE IRISH LAND LAW 3ED 1997 PARA 13.168

ALLIED IRISH BANKS (AIB) PLC v GRIFFIN 1992 2 IR 70 1992 ILRM 590 1992 1 10

IRISH BANK OF COMMERCE v O'HARA UNREP COSTELLO 10.5.89 1989/6/1739

THORPE v BROWN 1867 LR 2HL 220

ULSTER BANK LTD v CRAWFORD UNREP LAFFOY 20.12.1999 1999/24/7933

REAL PROPERTY

Judgment mortgage

Well charging order - Whether judgment mortgage well charged - Affidavit to register judgment as mortgage - Description of location of property - Last known place of abode - Whether non-compliance of affidavit with strict statutory requirements was fatal to application to have judgment registered as mortgage - Irish Bank of Commerce v O'Hara (Unrep, SC, 7/4/1992), Allied Irish Banks plc v Griffin (Unrep, Denham J, 16/12/1991) and Ulster Bank Ltd v Crawford (Unrep, Laffoy J, 20/12/1999) considered - Judgment Mortgage (Ireland) Act 1850 (13 & 14 Vict, c 29), s 6 - Order declaring that judgment mortgage well charged granted (2006/380SP - Dunne J - 28/4/2007) [2007] IEHC 131 Dovebid Netherlands BV v Phelan

The plaintiff sought a declaration that a judgment mortgage registered by the plaintiff over the interest of the first named defendant in certain lands and premises stood well charged over the interest of the first named defendant in the said lands and premises. The second named defendant contended that the plaintiff was not entitled to the declaration on the basis that the judgment mortgage affidavit failed to comply with the provisions of s. 6 of the Judgment Mortgage (Ireland) Act 1850.

Held by Dunne J. in determining that the application was not defeated by reason of non-compliance with the statutory requirements that the non-compliance of the judgment mortgage affidavit with the strict requirements of the Judgment Mortgage (Ireland) Act 1850 was not fatal to the well charging application.

Reporter: R.W.

1

Judgment of Ms. Justice Dunne delivered on the 23rd day of April 2007

2

The plaintiff herein seeks a declaration that a judgment mortgage registered by the plaintiff on 1st December 2005, over the interest of the first named defendant in certain lands and premises stands well charged over the interest of the first named defendant in the said lands and premises. Judgment was obtained by the plaintiff herein against the first named defendant on 19th August 2005, in the sum of €124,301 together with interest thereon from 19th November 2001. In the grounding affidavit of Kirk Dove sworn herein on 25th October 2006, it is averred that the plaintiff converted the judgment into a judgment mortgage on 1st December 2005, against the interest of the first named defendant in "the lands and premises at 49, Mountainview Road, Ranelagh in the city of Dublin," by lodging an office copy of a judgment mortgage affidavit.

3

Issue is taken with two aspects of the affidavit sworn to register the judgment as a mortgage on 4th November 2005. At para 5 of the affidavit it is stated:

"That the name of the defendant in the said judgment is William Phelan and that the address of the defendant at the time that the said judgment was so obtained was 49, Mountainview Road, Ranelagh, Dublin 6 and at present is also 49, Mountainview Road, Ranelagh, Dublin 6.

I further say that to the best of my knowledge and belief the said William Phelan, the defendant is at the time of swearing this affidavit seized or possessed at law or in equity, or has disposing power which he may without the assent of any other person exercise for his own benefit, over certain lands tenements hereditaments and premises hereinafter mentioned, that is to say ALL THAT AND THOSE the lands and premises commonly known as 49, Mountainview Road, Ranelagh, Dublin 6 in the city of Dublin."

4

Counsel on behalf of the second named defendant has argued that the plaintiff is not entitled to have a declaration that the judgment mortgage is well charged on the basis that the affidavit to register the judgment as a mortgage (judgment mortgage affidavit) does not comply with the provisions of s. 6 of the Judgment Mortgage (Ireland) Act 1850, in respect of two matters, namely that the affidavit must specify "the County and Barony or the Town or County of a City and Parish or the Town and Parish" in which the land is situated and the second point relates to the requirement contained in the Judgment Mortgage (Ireland) Act 1850 that the "usual or last known place of abode" of the defendant to whom the judgment relates must be stated in the judgment mortgage affidavit.

5

In the oral submissions made herein it was conceded by counsel on behalf of the plaintiff that the judgment mortgage affidavit did not comply with the requirements of the provisions of the Judgment Mortgage (Ireland) Act 1850, in these two respects. It was argued that the non-compliance of the judgment mortgage affidavit was not fatal to the application to have the judgment mortgage well charged. Accordingly the issue to be determined at this point is whether non-compliance with the strict requirements of the Judgment Mortgage (Ireland) Act 1850, is fatal to the plaintiff's application for a declaration that the judgment mortgage herein is well charged on the first named defendant's interest in the said lands and premises.

6

In the course of argument herein I was furnished with helpful submissions in writing from the plaintiff and the second named defendant. I also had the benefit of oral argument.

7

Section 6 of the Judgments (Ireland) Act 1850 , requires that an affidavit to register a judgment mortgage shall state, inter alia

"the name or title of the cause or matter, and the court in which such judgment … has been entered up … and the usual or last known place of abode and the title trade or profession of the plaintiff (if there be such, and of the defendant or person whose estate is intended to be effected by the registration, as hereinafter mentioned … and such affidavit shall specify the County and Barony, or the Town or County of a City, and Parish or the Town and Parish in which the lands to which the affidavit relates are situate."

8

In considering the manner in which s. 6 has been interpreted it is useful to refer to a passage from Wylie's Irish Land Law, 3rd Ed. at para. 13.168:

"The procedure laid down by statute governing the affidavit must be followed with precision, otherwise the registration may be invalid and no mortgage on the land will be created. However, over the years the Irish Courts have fluctuated in their views as to the effect of non-compliance strictly with the requirements of the Act, in particular with respect to the contents of the affidavit necessary for registration. The better view is that the courts will now give the statute a purposive interpretation and will not allow non-compliance with the strict requirements to invalidate a judgment mortgage unless this would defeat one of the purposes of the Act, e.g. by rendering it impossible to identify clearly the parties or the lands effected. It appears also that the insertion of material in addition to the statutory requirements, though unnecessary and, perhaps even inaccurate, will not invalidate the registration, provided the statutory requirements are met."

9

In the course of argument a line of authority was opened to me which exemplifies the point being made by Wylie in that passage. Counsel for the second named defendant placed particular reliance on the decision of the High Court in the case of Allied Irish Banks plc v. Griffin (Unreported, 16th December 1991.) In that case the description of the defendant given in the judgment mortgage affidavit was that she was a "widow". In her affidavit in the proceedings the defendant stated that her title, trade or profession was not that of a widow but that of a farmer. This was conceded by the plaintiff in those proceedings. It is interesting to note that in that case Denham J. had referred to the judgment of Costello J. in the case of IBC v. O'Hara (Unreported) which was then under appeal to the Supreme Court. That case dealt with a description of lands and therefore Denham J. was of the view that it did not overrule the authorities in relation of the description of a person. Having referred to a number of cases where a strict interpretation was applied in relation to the description of the title, trade or profession she stated at p. 8 of her judgement:

"The law under s. 6 Judgment Mortgage Act 1850, has been clearly interpreted by cases of the High Court as requiring the description of a person in their trade or profession if they have one. This was not done here.

The words 'widow, widower, married woman, married man, spinster or bachelor' state marital status, and where a person is a farmer are not a title, trade or profession as required by the Act. To have described the defendant, who at the requisite time was a farmer as a widow was a mis-description. Thus the affidavit is valid."

10

She then refused the application.

11

In the IBC v. O'Hara case, (Unreported, Supreme Court, 7th April 1992) Finlay C.J. was quite trenchant in his consideration of the issue that arose in that case. At p. 4 of his judgment he made the following comment:

"The requirement of justice would, undoubtedly, be that the appeal should be dismissed and the plaintiff entitled to realise the security which they seek to have declared well charged. The issue for the court may, under certain circumstances, conceivably therefore be as to whether if the judgment mortgage affidavit failed strictly to comply with the terms of s. 6 of the Act of 1850, justice must, in this...

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2 cases
  • Mason Hayes and Curran v Queally
    • Ireland
    • High Court
    • 26 Octubre 2018
    ...and the precise interest of the second defendant had been authoritatively determined. 168 In Dovebid Netherlands B.V. v. Phelan [2007] IEHC 239 Dunne J. also adopted and applied the principles in A.S. and ACC Bank v. Markham. In Dovebid a property adjustment order was made in matrimonial p......
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