Harris v Swordy

• Jurisdiction: Ireland
• Judgment Date: 16 June 1975
• Neutral Citation: 1965 WJSC-HC 3869
• Date: 16 June 1975
• Docket Number: No. 71 Sp./1966
• Court: High Court

1965 WJSC-HC 3869

THE HIGH COURT

No. 71 Sp./1966

Harris v. Swordy

WILLIAM HARRIS

Plaintiff

and

ANITA SWORDY

Defendant

Judgment delivered 16th June 1975

1 The premises 32 Wellington Road, Ballsbridge, Dublin are held under a lease of the 5th of July 1852 for a term of 150 years at an annual rent of £5.17. In 1962 the defendant was the owner of the lessees interest. On the 21st of May 1962 she mortgaged it to the plaintiff to secure the repayment of £5,500. She made a further mortgage on the 15th of July 1963 to him to secure repayment of £2,000. The Plaintiff subsequently brought these proceedings to realise the amount due on the two mortgages and by an order dated the 11th of January 1968 this Court declared that the principal sums and interest secured by the two mortgages were well charged on the defendant's interest in the lands and directed that an inquiry be held as to the amount due under the two mortgages. The order went on to provide that in default of payment of the sum found to be due within three months after the filing of the examiner's certificate the premises were to be sold through the Court. The defendant appealed against this order and on the 14th of May 1970 the appeal was dismissed by the Supreme Court.

2 On the 19th of October 1970 this Court appointed Mr. Anthony Leon to be receiver of the rents and profits in respect of the premises pending the sale of them. He was given liberty to take such proceedings as were necessary to eject the persons in occupation of the premises and also to carry out such repairs as were necessary.

3 The premises were at this time occupied by persons who had no legal title to be there and they included Michael O'Brien ("the purchases") who subsequently purchased the property at the sale by public auction. On the 19th of December 1972 an order was made in ejectment proceedings brought in the Circuit Court. The persons then in occupation of the premises gave up possession of them to the receiver and vacant possession of the entire property was obtained on the 28th of February 1973.

4 Considerable difficulty arose in ascertaining the amount due to the Plaintiff under the mortgages and on the 9th of July 1973 an order was made by which the order of the 11th of January 1968 was amended to provide that the Court was satisfied that a substantial sum was due by the defendant to the plaintiff and providing for an immediate sale of the property.

5 The conditions of sale on which the property was sold on the 6th of December 1973 provided for a deposit of 25% on the amount of the purchase money, that the purchaser was to pay the balance of the purchase money into Court on or before the 7th of January 1974 and that from that date the purchaser was to be entitled to possession. The conditions also provided in clause 11:

"The purchaser shall be deemed to have inspected the property for sale and to have purchases with full knowledge of the state thereof as regards repairs, party walls and other like matters".

6 The last condition provided:

"If the purchaser shall not pay his purchase money at the time above specified or at any other time which may be named in any order for that purpose, and in all other respects perform these conditions, an order may be made by the Court for the resale of the property and for payment by the purchaser of the deficiency (if any)...