Drillfix Ltd v Savage

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 09 December 2009
• Neutral Citation: [2009] IEHC 546
• Court: High Court
• Date: 09 December 2009

[2009] IEHC 546

THE HIGH COURT

No. 1277SP 2008

Drillfix Ltd v Savage

[2009] IEHC 546

BETWEEN:

DRILLFIX LIMITED

PLAINTIFF

AND

MABEL SAVAGE AND RUTH SAVAGE

DEFENDANTS

IRWIN v DEASY 2006 2 ILRM 226 2006/30/6354 2006 IEHC 25

FIRST NATIONAL BUILDING SOCIETY v RING 1992 1 IR 375 1991/9/1956

PARTITION ACT 1868 S4

FAMILY HOME PROTECTION ACT 1976

LAND LAW

Judgment mortgage

Unregistered land - Property jointly owned - Judgment mortgage obtained against interest of one co-owner only - Well-charging order sought - Order for sale in lieu of partition - Hardship to co-owing spouse - Innocent party - Judicial discretion to refuse sale - Whether good reason to refuse order for sale - Factors to be considered - Valuation of property - Relevance of feasibility of sale of property - Net equity available - Necessity for further inquiries - Irwin v Deasy [2006] IEHC 25, [2006] 2 ILRM 226 and First National Building Society v Ring [1992] 1 IR 375 considered - Partition Act 1868 (31 & 32 Vict. c. 40), s 4 - Well charging order made and proceedings adjourned to facilitate inquiries; Order for partition and sale in lieu of partition refused (2008/1277JR - Dunne J - 9/12/09) 2009 IEHC 546

Drillfix Ltd v Savage

Facts The plaintiff sought a declaration that by virtue of a judgment mortgage registered against the first named defendant, the sum of €165,247.75 together with interest thereon until payment, stood well charged upon the interests of the first named defendant in a particular premises. The plaintiff also sought a declaration that there was due and owing by the first named defendant to the plaintiff on foot of the said mortgage the said sum of €165,247.75 with interest thereon. In addition, the plaintiff sought an order directing the enforcement of all sums due to the plaintiff by the sale of the land and property. The premises in question was owned by the first and second named defendants, who were sisters, as tenants in common. The defendant did not object to the plaintiff's entitlement to seek the declaratory orders herein but urged the court not to make an order for sale. The judgment mortgage was obtained against the first named defendant owing to that defendant's embezzlement from the plaintiff, with whom she was previously employed. In the course of submissions it was indicated that the premises had a value of approximately €350,000. The defendants, who were approaching retirement age continued to discharge mortgage repayments on the property. The second named defendant submitted that as she was an innocent party it would be unjust and inequitable to deprive her of her home.

Held by Dunne J.: That there was some uncertainty regarding the estimated value of the property and the extent of the mortgage on the premises, which required clarification. It was also important to ascertain the feasibility of a sale of the property given the current economic climate and the costs involved in such a sale. The court ought to have the information necessary to ascertain precisely the likely net proceeds available following a sale in respect of the first named defendant's interest in the property. No order should be made pending those enquiries and the proceedings were adjourned in that respect. However, the applicant was entitled to a well charging order over the first named defendant's interest in the property and also to a declaration that there was due and owing by the first named defendant to the plaintiff on foot of the said judgment mortgage the said sum of €165,247.75 with interest thereon.

Reporter: L.O'S.

1 Ms. Justice Dunne on the 9 day of December 2009

2 On the 5 ^th November 2007 the plaintiff herein obtained judgement against the first named defendant herein for the sum of €165,247.75 together with costs in proceedings entitled "Drillfix Limited, plaintiff and Mabel Savage, defendant-High Court, record number 2006/726S". Subsequently, that judgement was registered by the plaintiff as a mortgage against the interest of the first named defendant in the lands, tenements, hereditaments and premises known as 22 Ardagh Road, Crumlin, Dublin 12 (hereinafter referred to as "the premises"). The second named defendant herein is a joint owner of the premises.

3 These proceedings were commenced by the plaintiff on 24 ^th March 2009 in which the plaintiff sought the following reliefs:

4 (I) A declaration that by virtue of the said judgement mortgage, the sum of €165,247.75 together with interest thereon at a rate of 8% per annum in the sum of €13,219.82 until payment stands well charged upon the interests of the first named defendant in the premises.

5 (II) A declaration that is due and going by the first named defendant to the plaintiff on foot of the said mortgage the said sum of €165,247.75 with interest there on.

6 (III) Alternatively, and if necessary, an order directing the taking of all necessary accounts or enquiries as to what some is due to the plaintiff on foot as he judgement mortgage together with an order directing payment of this sum when ascertained.

7 (IV) An order directing the enforcement of all sums due to the plaintiff by the sale of the land and property or by a receiver or by polls, as this honourable court shall direct.

8 (V) An order that in default of payment by the first named defendant of the above sums that the premises be sold in lieu of partition pursuant to the Partition Acts 1868-1876 with an order for the taking of all necessary accounts and enquiries including as to distribution of the proceeds of sale.

9 A number of affidavits were filed in the course of the proceedings. The first affidavit sworn herein is an affidavit of Maria Priestly grounding the plaintiff's claim herein. That affidavit was in a standard form appropriate for proceedings such as these. Each of the defendants swore replying affidavits. In her affidavit the first named defendant set out a number of matters which help to explain the background to this matter and how the plaintiff came to obtain judgement against her in the first place. She also set out a number of matters relating to her personal circumstances and those of her sister, the second named defendant. She pointed out that she and her sister reside together in the premises; they are both approaching retirement; her sister has ceased full-time work due to poor health and in the event that an order for sale is made they will probably be unable to secure accommodation wherein they both might continue to live together. In the circumstances, although there was no objection to the entitlement of the plaintiff to seek the declaratory reliefs sought herein the first named defendant urged the court not to make an order for sale.

10 The second named defendant went into some more detail about the background circumstances relating to the premises themselves and the circumstances which have led to the current proceedings. She explained that she and her sister have resided at the property since 1979 when the property was purchased for the sum of £16,000 with the assistance of a mortgage. The property is owned by the defendants as Tenants in common. They continue to discharge the mortgage repayments due on the property.

11 The second named defendant states that she and her sister were never served with a copy of the order of the 5 ^th November 2007 against the first named defendant but she acknowledges and accepts that the plaintiff was granted judgement on that date against her sister. They were aware that proceedings had been commenced against the first named defendant. Unfortunately, the first named defendant who worked for many...