Holohan v Aughey
|Ms. Justice Finlay Geoghegan
|28 June 2004
| IEHC 115
|28 June 2004
 IEHC 115
THE HIGH COURT
Facts: The plaintiff instituted proceedings seeking a declaration that two judgment mortgages stood well-charged on the defendant’s lands. Originally the defendant in separate proceedings had instituted a claim against another party. The defendant had been unsuccessful and two orders for cost were made in favour of the other party who subsequently deceased. This party’s widow subsequently assigned the benefit of these orders to the plaintiff in consideration of a claim the plaintiff had for professional fees against the estate of the deceased. One of the primary argument submitted by the defendant in this case was that one of the judgments had been registered as a burden on the defendant’s lands in 1993 by the depositing of a judgment mortgage affidavit (sworn by the deceased) and that there had been a second registration in respect of the same sum by a further second judgment mortgage, sworn by the plaintiff, (in September 2000) which could not be valid. The plaintiff submitted that the judgment mortgage registered in 1993 had not been re-registered within five years of September 2000, it was not valid and did not preclude the second registration from being a valid registration.
Held by Finlay Geoghegan J in finding in favour of the plaintiff. There was no objection to the validity of the charge created by the registration of the judgment mortgage in respect of the second order of costs and the plaintiff was entitled to relief in respect of this sum. However the plaintiff was also entitled to relief in respect of the contentious judgment mortgage. The assignment of the benefit of the orders of costs meant that this was now a debt due to the plaintiff by the defendant and there no longer existed a debt between the defendant and the estate of the deceased. Accordingly when the plaintiff registered the judgment mortgage affidavit in respect of the first order of costs there was no debt charged on the defendant’s interest in the lands pursuant to the earlier registration and therefore no bar to the registration of the judgment mortgage affidavit of the plaintiff.
Ms. Justice Finlay Geoghegan delivered on the 28th day of June 2004.
The plaintiff's claim as stated in the special summons is for a declaration that by virtue of the conversion of two judgments dated the 28 th June 1991 and 5 th October 1995 to judgment mortgages a sum of €70,492.29 together with continuing interest from the 29 th April 2003 at the rate of 8% per annum on the principal sums of €2,791.52 and €40,692.68 stands well charged on the interest of the defendant in the lands and premises comprised in Folio No. 4877F of the register of free-holders in the County of Westmeath.
The facts are not in dispute and one legal objection is made namely that in respect of the judgment of the 28 th June 1991 the registration of same as a burden against the defendant's interest in the lands in Folio No. 4877F Co. Westmeath by the depositing of a judgment mortgage affidavit sworn on the 17 th May 2000 was invalid as the judgment had previously been registered as a burden against the defendants interest in the lands comprised in Folio No. 4877F Co. Westmeath on or about the 23 rd November 1993 by the depositing of a judgment mortgage affidavit sworn by John Browne (deceased).
The defendant in these proceedings commenced proceedings in the High Court [1982 No. 4140P] against the late John Browne. In those proceedings two orders for costs were made in favour of Mr. Browne against the defendant herein dated the 28 th June, 1991 and the 5 th October 1995 respectively. Each of those order for costs were taxed; that of the 28 th June 1991 in the sum of £2198.50 (now €2791.52) and that of the 5 thOctober 1995 in the sum of £32048.09 now (€40692.68).
Mr. Browne died on the 11 th July 1996 and letters of administration were issued on the 2 nd May 1997 to his widow Eileen Browne. By an assignment in writing dated the 17 thFebruary 1999 the said Eileen Browne as legal personal representative of John Browne assigned the benefit of the said orders for costs dated 28 th June 19991 and the 5 th October 1995 to the plaintiff herein inconsideration of his claim against the estate of John Browne for professional fees in respect of these said action. The plaintiff was the solicitor acting for John Browne in the said action. Notice of the assignment date of the 20 th May 1999 was given to the defendant herein pursuant to s. 28(6) of the Supreme Court of Judicature Act (Ireland), 1877.
On the 6 th March 2000 by order of the High Court (Kinlen J.) in the said proceedings 1982 No. 4140P the plaintiff was given liberty to swear a judgment mortgage affidavit for the purpose of registering the judgment pursuant to the orders for costs therein of the 28 th June 1991 and the 5 th October 1995 and the proper officer of the High Court was given liberty to accept the said affidavit for registration of the judgment as a judgement mortgage. On the 26 th May 2000 a judgment mortgage affidavit sworn by the plaintiff on the 17 th May 2000 in respect of the two judgments namely the orders for costs of the 28 th June 1991 in the sum of IR£2198.50 and of the 5 th October in the sum of IR£3248.09 was filed in the office of the High Court pursuant to the provisions of s.6 of the judgment mortgage...
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