Holohan v Aughey

• Jurisdiction: Ireland
• Judgment Date: 28 June 2004
• Date: 28 June 2004
• Docket Number: [2003 No. 193 S.P.]
• Court: High Court

[2004] IEHC 244

High Court

[2003 No. 193 S.P.]

Holohan v. Aughey

Bill Holohan

Plaintiff

and

Shiela (otherwise Sile) Aughey

Cases mentioned in this report:-

In re. Field's Estate (1877) 11 I.R. Eq. 456.

Patterson v. Duncan (1929) 63 I.L.T.R. 76.

Judgment mortgage - Well charging order - Registration - Enforcement - Validity - Assignment - Registered land - Whether second charge could be validly registered against judgment debtor's interest in registered land in respect of same judgment - Judgment Mortgage (Ireland) Act 1850 (13 & 14 Vict., c. 29) - Supreme Court of Judicature (Ireland) Act 1877 (40 & 41 Vict., c.57) - Registration of Title Act 1964 (No. 16).

Special summons

The facts of the case have been summarised in the headnote and are more fully set out in the judgment of Finlay Geoghegan J.,infra.

The special summons was heard by the High Court (Finlay Geoghegan J.) on the 29th March, 2004.

The defendant took High Court proceedings which resulted in two orders for costs being made against her in favour of the other party. After the death of the other party, his personal representative assigned the benefit of the two costs orders to the plaintiff, a solicitor, in consideration of his claim against the estate for professional fees in respect of the said High Court action. The plaintiff was given liberty by the High Court to swear a judgment mortgage affidavit for the purpose of registering the judgments as judgment mortgages and the said judgment mortgages were subsequently registered against the defendant's interest in registered land in County Westmeath.

In these proceedings the plaintiff sought a declaration that the said judgment mortgages were well charged against the defendant's interest in the said lands. The defendant submitted that the registration of the first judgment as a burden against the defendant's interest in the said lands was invalid as the judgment had been previously registered against the said lands by the other party in the original High Court proceedings.

Held by the High Court (Finlay Geoghegan J.), in granting the order sought, 1, that the registration of a judgment mortgage against registered land did not effect any transfer of any interest in the lands to the judgment creditor but operated to charge the interest of the judgment debtor with the judgment and the creditor was entitled to such rights and remedies for the enforcement of the charge as might be conferred on him by order of the court.

In re Field's Estate (1877) 11 I.R. Eq. 456 distinguished.

2. That there could be at any given time only one charge validly registered against a judgment debtor's interest in registered land in respect of the same judgment entitling the judgment creditor (or his assignee) to a remedy to enforce the charge.

In re Field's Estate (1877) 11 I.R. Eq. 456 considered.

3. That, following the legal assignment to the plaintiff of the benefit of the judgments against the defendant by the personal representative of the judgment creditor, there was no longer any debt due by the defendant to the estate of the judgment creditor, notwithstanding the continued registration of the judgment mortgage of the judgment creditor, and the debt was now due by the defendant to the plaintiff and the plaintiff was entitled to a good discharge for same.

4. That, at the date of registration of the judgment mortgage of the plaintiff, there was no debt charged on the defendant's interest in the lands pursuant to the earlier registration and, therefore, no bar to the charge created by the registration of the judgment mortgage of the plaintiff.

5. That the provisions of s. 4 of the Judgment Mortgage (Ireland) Act 1850 apply only to judgments entered prior to the date of the passing of that Act and that only s. 6 and the subsequent...