Fitzgerald v Gowrie Park Utility Society Ltd

CourtSupreme Court
Judgment Date08 November 1966
Date08 November 1966

Supreme Court.

Fitzgerald v. Gowrie Park Utility Society Ltd.

Practice - Judgment debt - Assignment - Application by assignee for leave to issue execution - Order granting leave made by High Court - Discretionary order - Appeal against discretionary order - Rules of the Superior Courts (S. I. No. 72 of 1962), Or. 42, r. 24.

Appeal from the High Court.

The defendants, Gowrie Park Utility Society Limited, appealed from an order of Mr. Justice Murnaghan granting Alphonsus Grogan, as assignee, leave to issue execution on foot of a judgment recovered by the plaintiff against the defendants. The facts are summarised in the head-note and are detailed in the judgment of Lavery J., post.

The defendants appealed from the above judgment to the Supreme Court.

On the 28th March, 1963, the plaintiff recovered judgment against the defendants in the Circuit Court in the sum of £182 10s. 0d. and on the same day the Circuit Court, in separate ejectment proceedings, decreed that the defendants should recover possession of certain premises from the plaintiff, the defendants being awarded their costs of the ejectment proceedings. The defendants in a third action, in the High Court, had claimed from the plaintiff payment of the sum of £662 10s. 0d. as mesne profits for the plaintiff's use of the said premises. The applicant acted as the plaintiff's solicitor in all three actions. On the 25th July, 1963, the High Court (1) affirmed the order of the Circuit Court made in the ejectment proceedings. On the 21st October, 1963, the High Court affirmed the judgment of the Circuit Court for £182 10s. 0d. in favour of the plaintiff and on the same day the plaintiff assigned his judgment to the applicant in consideration of a release by the applicant of all his claims for costs. Notice of the said assignment was given to the defendants. The defendants did not seek to stay the execution of the plaintiff's judgment.

The applicant applied, as such assignee, in the plaintiff's action to the High Court for leave to issue execution on foot of the judgment for £182 10s. 0d. The defendants costs of the ejectment proceedings had not been taxed and the defendants claim for mesne profits had not been determined at the date of the hearing of the application. The High Court made an order granting the applicant leave to issue execution and the defendants appealed to the Supreme Court. At the date of the hearing of that appeal the defendants costs of the ejectment proceedings had been taxed at the sum of £115 3s. 2d.; and the defendants had recovered judgment against the plaintiff for the sum of £662 10s. 0d. and costs in the defendants' action for mesne profits, subject to an appeal by the plaintiff (2).

Held by the Supreme Court (Lavery, Haugh and Walsh JJ.: Ó Dálaigh ó dálaigh C.J. and Kingsmill Moore J., dissenting) that, as the discretion to grant leave to issue execution had been exercised upon a wrong principle, the appeal should be allowed; but the applicant should have liberty to renew his application to the High Court upon the determination of the plaintiff's appeal against the defendants' judgment for mesne profits (2).

Murnaghan J. :—

I have sympathy for the defendant company. At the same time the defendant company may only have itself to blame, because if an application had been made to Henchy J. for a stay of execution on the Order of 21st October, 1963 and such a stay had been granted, it would not now be open to me to consider the present application. Mr. Fitzgerald at the date he assigned his judgment to Mr. Grogan was entitled to sue out an order of fieri facias, and by virtue of his assignment placed Mr. Grogan in that position, subject to the latter obtaining leave from the Court. The present application, on behalf of Mr. Grogan, is made under Order 42, rule 24, for leave to issue execution in the circumstances; and the only real question that has arisen in argument is as to whether I should exercise my discretion and refuse the application notwithstanding the fact that I am satisfied that Mr. Grogan is entitled to execution. I consider that I should look at the matter in the first instance from the point of view of Mr. Grogan. He took an assignment of the judgment which at the time was of full force and effect, and it is not suggested that in doing so he acted other thanbona fide. If the judgment was not, at the date of the assignment thereof, available as an asset, Mr. Grogan might have obtained some other security for the discharge of the indebtedness of the plaintiff. I should be slow, I think, to lessen the value of the judgment to Mr. Grogan purely because the defendant company overlooked taking a step which if successful would in effect, in the circumstances, have rendered the judgment, from the point of view of Mr. Grogan, valueless. I have decided for the foregoing reasons to grant the application.

Cur. adv. vult.

Ó Dálaigh C.J. ó dálaigh :—

I have read the judgment which Mr. Justice Kingsmill Moore will deliver and I agree with it.

This case, it seems to me, is analogous to Bryant v.Torkington(1) where the English Court of Appeal allowed an order giving leave to issue execution to stand. There, as here, the assignee of the judgment was the plaintiff's solicitor. The Court clearly rejected the proposition that a Court is bound to allow one judgment to be set off against another.

The cases of Dale v. Powell(2) and Kayley v. Hothersall(3)to which we were referred, are both cases arising under s. 5 of the Mercantile Law Amendment Act, 1856. The rightsinter se referred to in those judgments are the rights of the party upon whom execution is to be levied. In the one case Dale was seeking leave to execute against Hood, who set up against him certain equitable rights arising out of their partnership engagements. In the other case Saint, who was seeking leave to execute, was a trustee of Mandle and Fisher; and the defendants against whom leave to issue execution was sought were P. & R. Hothersall who claimed that Mandle & Fisher were indebted to them in respect of other transactions in a sum exceeding the amount due from them under the judgment. A comparable case would arise here if the applicant, Alphonsus Grogan, could be shown to be indebted to the Utility Society.

I would not interfere with the order of Mr. Justice Murnaghan.

Lavery J. :—

In dealing with this appeal it is necessary to set out the somewhat lengthy proceedings which found the appeal before the Court. Before doing this, it may help if I state the particular issue. Mr. Alphonsus Grogan, a solicitor, as assignee from his client (Mr. Patrick Fitzgerald) of a decree of the High Court affirming a decree of the Circuit Court for the sum of £182 10s. 0d. against the Gowrie Park Utility Society Ltd., applied to the High Court for leave to issue execution on the judgment against the Society. On the 8th November, 1963, Mr. Justice Murnaghan granted the application. The Society appeals.

Order 42, r. 24, of the Rules of the Superior Courts provides that, where there has been a change of parties entitled to excution, the party alleging himself to be entitled to execution may apply to the Court for leave to issue execution

and the Court, if satisfied that he is entitled to issue execution, may make an order to that effect and may impose such terms as to costs or otherwise as shall be just. The matter to be decided is therefore whether the applicant is entitled to issue execution and, if so, should terms be imposed in order to be just. The words of the Rule make it clear that the Court has a discretion to refuse leave or, if granting leave, to impose terms so as to achieve justice. The Rule now to be applied is a reproduction of similar provisions in force for very many years both in England and in Ireland and, if it be necessary to refer to the decisions on these earlier Rules, they show not only the recognition of this discretion, but explain its nature and extent. The earliest provisions I have traced are ss. 147-150 of the Common Law Procedure Amendment Act (Ireland) 1853.

Prior to the Supreme Court of Judicature Act (Ireland) 1877, a judgment debt or other chose in action could not be legally assigned. An equitable assignment could be made but the assignee could only enforce the debt in the name of the assignor and not if equities between the judgment creditor and judgment debtor would bar execution. The statute created no new rights and the assigned debt was subject in the hands of the assignee to equities existing at the time of notice of the assignment. The assignee can only sue where before...

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    ...- Certificates of taxation - Delay jurisprudence - Smyth v Tunney [2004] 2 ILRM 537 and Fitzgerald v Gowrie Park Utilities Society Ltd [1966] IR 662 considered - Stephens v Paul Flynn Limited [2005] IEHC 148 (Unrep, Clarke J, 28/4/2005), Barry v Ireland (ECHR, 15/12/2005), McMullen v Irelan......
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    ...Procedure Amendment Act (Ireland), 1853. Following the decision of the Supreme Court in Fitzgerald v. Gowrie Park Utilities Society Ltd. [1966] I.R. 662, Geoghegan J. found that the jurisdiction to decide whether to grant leave to issue execution more than six years after the judgment or or......
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