Irwin v Deasy

• Jurisdiction: Ireland
• Court: High Court
• Judge: Miss Justice Laffoy
• Judgment Date: 31 January 2006
• Neutral Citation: [2006] IEHC 25
• Date: 31 January 2006

[2006] IEHC 25

THE HIGH COURT

[No. 151 SP/2003]

IRWIN v DEASY

BETWEEN/

LIAM J. IRWIN

PLAINTIFF

AND

THOMAS DEASY AND (BY ORDER) CARMEL DEASY

DEFENDANTS

IRWIN v DEASY 2004 4 IR 1

PARTITION ACT 1868 S3

PARTITION ACT 1868 S4

PARTITION ACT 1868 S9

INTERPRETATION ACT 2005

NORTHERN BANK v HAGGERTY 1995 NI 211

PROPERTY (NORTHERN IRELAND) ORDER 1997 SI 1179/1997 ART 48

HILL v MAUNSELL-EYRE 1944 IR 499 78 ILTR 104

CONWAY CO-OWNERSHIP OF LAND 2000 PARA 8.98

FIRST NATIONAL BUILDING SOCIETY v RING 1992 1 IR 375

MCALLISTER REGISTRATION OF TITLE IN IRELAND 1973 210

FITZGERALD LAND REGISTRY PRACTICE 2ED 1995 129

JOINT TENANTS ACT 1542 33 HEN VIII c.10

REAL PROPERTY LIMITATION ACT 1833

JUDICATURE (IRELAND) ACT 1877

JUDGMENT MORTGAGE (IRELAND) ACT 1850 S7

RECORD OF TITLE (IRELAND) ACT 1865

REGISTRATION OF TITLE 1891 S21(1)

REGISTRATION OF TITLE 1891 S21(2)

REGISTRATION OF TITLE 1891 S45(1)

REGISTRATION OF TITLE ACT 1964 S69

STRONG, RE 1940 IR 382 74 ILTR 177

STATUTE LAW REVISION (PRE-UNION IRISH STATUTES) ACT 1962

LAW REFORM COMMISSION REPORT ON LAND LAW & CONVEYANCING LAW LRC R 30-1989 6

F (F) v F (C) 1987 ILRM 1

REGISTRATION OF TITLE ACT 1964 S69(1)

REGISTRATION OF TITLE ACT 1964 S71(4)(a)

REGISTRATION OF TITLE ACT 1964 S71(4)(b)

REGISTRATION OF TITLE ACT 1964 S71(4)(c)

FARRELL v DONNELLY 1913 1 IR 50

GLEESON v FEEHAN 1997 1 ILRM 522

LAW REFORM COMMISSION CONSULTATION PAPER ON JUDGMENT MORTGAGES LRC CP 30-2004

GLOVER A TREATISE ON THE REGISTRATION OF OWNERSHIP OF LAND IN IRELAND 1993 172

REAL PROPERTY Judgment mortgage Registered land - Joint tenancy - Enforcement - Creditor seeking order for sale in lieu of partition - Judgment mortgage against one joint tenant - Whether jurisdiction to make such an order - Judgment Mortgage (Ireland) Act 1850 (13 & 14 Vict, c 29), s 7 - Partition Act 1868 (32 & 33 Vict, c 40), ss 3, 4 and 9 - Registration of Title Act 1964 (No16), s 71(4) - Claim dismissed (2003/151Sp - Laffoy J - 31/1/2006) [ 1006] IEHC 25; [2006] 2 ILRM 226 Irwin v Deasy

Facts: This mortgage suit had already been the subject of a judgment of the Court dated the 1st March, 2004. The land on which the judgment mortgage was registered was co-owned but the judgment mortgage was only registered against the interest of one of the co-owners. Therefore, in order to give the judgment creditor an effective remedy for the enforcement of the judgment mortgage it would be necessary to either order partition of the land between the judgment debtor and the co-owner or a sale in lieu of partition and a division of the proceeds of sale.

Held by Laffoy J. in refusing the Plaintiff’s application that in the absence of specific jurisdiction the Court did not have jurisdiction. The Plaintiff did not have sufficient interest to maintain a suit for partition and the Court did not have jurisdiction to order a sale in lieu of partition of the lands at the suit of the Plaintiff.

Reporter: R.W.

1 Judgment of Miss Justice Laffoy delivered on 31st January, 2006.

2 This mortgage suit, which was initiated by a special summons which was issued on 4th April, 2003, has already been the subject of a judgment of this court, the judgment of Finlay Geoghegan J. dated 1st March, 2004, which is reported as Irwin v. Deasy [2004] 4 I.R. 1. In the special summons the plaintiff, the Collector General of the Revenue Commissioners, sought a declaration that the monies secured by three judgment mortgages registered by him against the interest of the first defendant, who at the outset was the only defendant in these proceedings, in the lands registered on folio 8249 of the Register of Freeholders, Co. Cork stood well charged on the interest of the first defendant in the said lands and the usual other reliefs sought in a mortgage suit, including an order for payment of the monies secured and, in default of payment, an order for sale in lieu of partition of the lands. When the plaintiff's application first came before the court for hearing the first defendant was represented by a solicitor but the solicitor made no submissions to the court. The second defendant, who is a co-owner with the first defendant, whom in an affidavit sworn by her on 8th October, 2004 she described as her "estranged spouse", of the lands registered on folio 8249 had been served with notice of the proceedings but did not appear when the matter was first before the court.

3 In her judgment delivered on 1st March, 2004 Finlay Geoghegan J. considered the jurisdiction of this court to make an order for sale in lieu of partition of registered lands at the request of a judgment mortgagee and whether such an order could be made in the absence of the second defendant as the co-owner of the lands registered on folio 8249.

4 On the jurisdiction issue, Finlay Geoghegan J. concluded that the registration of the judgment affidavits under s. 71 of the Registration of Title Act, 1964 (the Act of 1964) did not confer on the plaintiff any interest in the lands registered on folio 8249 such as would entitle him to a decree of partition in accordance with established principles, and that it followed from that conclusion that he was not entitled to an order for sale in lieu of partition under either s. 3 or s. 4 of the Partition Act, 1868 (the Act of 1868). However, she went on to consider the jurisdiction conferred on the court by s. 71(4) of the Act of 1964, stating as follows (at p. 9):

"However, as previously indicated in this judgment, s. 71(4) of the Act of 1964 confers on the court a discretion as to the rights and remedies for the enforcement of the charge which may be conferred by order of the court. I have also previously indicated that it appears to me that such discretion should be construed as giving to the court a jurisdiction and discretion to grant orders similar to those which are and have been granted pursuant to the court's pre-existing equitable or common law jurisdiction for the enforcement of judgment mortgages registered against unregistered land. Hence, as I am satisfied that there continues to exist in the courts jurisdiction to make orders for sale in lieu of partition under ss. 3 and 4 of the Act of 1868 at the request of judgment creditors who have registered judgment mortgage affidavits against unregistered land in the Registry of Deeds, it appears that the provisions of s. 71(4) of the Act of 1964 should properly be construed as including an intention to confer on the courts an analogous jurisdiction in relation to registered land."

5 Having stated that it did not seem to be necessary to resolve the question whether s. 71(4) operated to sever the joint tenancy of the first and second defendants in the lands registered on folio 8249, Finlay Geoghegan J. (at p. 10), set out her conclusions on the jurisdiction issue as follows:

"Hence, I have concluded that the rights and remedies which the court may order under s. 71(4) for the enforcement of a charge registered pursuant to that section must include in an appropriate case an order for partition and/or an order for sale in lieu of partition. It further appears that the court should by analogy exercise its discretion in accordance with the principles established in relation to the granting of decrees of partition and to the making of orders for sale in lieu of partition in accordance with the provisions of s. 3 and s. 4 of the Act of 1868."

6 On the question whether an order for sale in lieu of partition should be made in the absence of the second defendant as a party to the proceedings, having rejected a submission made on behalf of the plaintiff primarily in reliance on s. 9 of the Act of 1868 that the second defendant was not a necessary party to the proceedings, Finlay Geoghegan J. stated (at p. 10):

"Even if I did not form this view on s. 9 it appears to me that in accordance with the constitutional principles of fair procedures that where a judgment creditor is seeking an order for sale of the entire property a person who is the only co-owner of the property with the judgment debtor should be joined as a party to the proceedings. Putting them on notice of the proceedings does not appear sufficient. Hence I am not prepared to permit the application for an order for sale in lieu of partition to proceed without Carmel Deasy being joined in these proceedings."

7 Finlay Geoghegan J. also observed that the plaintiff had not set out on affidavit the factual matters which would have to be addressed before the court could consider exercising its discretion by analogy to s. 3 or s. 4 of the Act of 1868.

8 The following orders were made on foot of the judgment of 1st March, 2004:

9 (1) a declaration that the principal monies and interest secured by the three judgment mortgages stood well charged on the interest of the first defendant in the lands registered on folio 8249;

10 (2) a finding as to the amounts due on foot of the three judgment mortgages, principal sums aggregating €457,793.81 together with interest at the court rate on the principal sums from the respective dates of the judgments (there being an obvious typographical error in relation to the date of one of the judgments in the perfected order, which should have read 27th January, 2000, rather than 27th January, 2001); and

11 (3) that the second defendant be joined as a co-defendant in the proceedings.

12 Ancillary procedural matters were also dealt with.

13 The special summons was amended by the joinder of the second defendant as a co-defendant. The special summons was duly served on the second defendant, on whose behalf an appearance was entered. Of the reliefs claimed on the amended special summons those which remain to be addressed are as follows:

14 (a) an order for payment by the first defendant of the amount which has already been found...