Judge Mahon and Others v Lawlor (Administrator Ad Litem of the Estate of Liam Lawlor)

• Jurisdiction: Ireland
• Judge: Mr Justice Finnegan
• Judgment Date: 25 November 2010
• Neutral Citation: [2010] IESC 58
• Court: Supreme Court
• Docket Number: [S.C. No. 16 of 2009]
• Date: 25 November 2010

[2010] IESC 58

THE SUPREME COURT

Denham J.

Finnegan J.

O'Donnell J.

Record No. 016/2009

Judge Mahon & Ors v Lawlor (Administrator Ad Litem of the Estate of Liam Lawlor)

BETWEEN

HIS HONOUR JUDGE ALAN P. MAHON, HER HONOUR MARY FAHERTY AND HIS HONOUR JUDGE GERALD B KEYES MEMBERS OF THE TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS AND PAYMENTS

PLAINTIFF/APPELLANT

AND

NOEL LAWLOR ADMINISTRATOR AD LITEM OF THE ESTATE OF LIAM LAWLOR DECEASED AND BY ORDER HAZEL LAWLOR

DEFENDANTS/RESPONDENTS

SUCCESSION ACT 1965 S4(C)

REGISTRATION OF TITLE ACT 1964 S62

REGISTRATION OF TITLE ACT 1964 S69

REGISTRATION OF TITLE ACT 1964 S71

YORK v STONE 91 ER 146 1709 1 SALK 158

POLLARDS ESTATE, IN RE 32 LJ CH 657 46 ER 746 1863 3 DE GJ & S 541

MEGARRY & WADE THE LAW OF REAL PROPERTY 4ED 1975 404-407

CHALLIS LAW OF REAL PROPERTY 3ED 1911 367

JUDGMENT MORTGAGE (IRL) ACT 1850 S7

M'ILROY v EDGAR 1881 7 LRI 521

LOCAL REGISTRATION OF TITLE (IRL) ACT 1891 S21

LOCAL REGISTRATION OF TITLE (IRL) ACT 1891 S45(1)

REGISTRATION OF TITLE ACT 1964 S69(1)(I)

REGISTRATION OF TITLE ACT 1964 S72

REGISTRATION OF TITLE ACT 1964 S71(4)

CONVEYANCING & LAW OF PROPERTY ACT 1881 S2(6)

REGISTRATION OF TITLE ACT 1964 S62(6)

SCANLAN, IN RE 1897 1 IR 462

LORD ABERGAVENNYS CASE 77 ER 373 1607 6 CO REP 78

LAND & CONVEYANCING LAW REFORM ACT 2009 S132

LAND & CONVEYANCING LAW REFORM ACT 2009 S30

LAND & CONVEYANCING LAW REFORM ACT 2009 S31

LAND & CONVEYANCING LAW REFORM ACT 2009 S31(2)

LAND & CONVEYANCING LAW REFORM ACT 2009 S31(3)

LAND & CONVEYANCING LAW REFORM ACT 2009 S117

PRACTICE & PROCEDURE

Execution

Judgment mortgage - Joint tenant - Registered land - Charge or burden - Registration of judgment against interest of joint tenant - Debtor dying before enforcement - Whether judgment continued to affect lands in hands of surviving joint tenant - Re Pollard's Estate [1863] 32 LJ Ch. 657 and York v Stone [1709] 1 Salk 158 approved; M'Ilroy v. Edgar (1881) 7 LR Ir. 521 and Re Scanlon [1897] 1 IR 462 considered; Lord Abergavenny's Case (1604) Pasch 5 Jacobi approved - Land and Conveyancing Law Reform Act 2009 (No 27), ss 30, 31 and 117 - Plaintiff's appeal dismissed (16/2009 - SC - 25/11/2010) [2010] IESC 58

Judge Mahon v Lawlor

REAL PROPRTY

Registered land

Joint tenancy - Severance - Judgment mortgage - Registration against interest of joint tenant - Debtor dying before execution - Whether registration gave rise to severance of joint tenancy - Whether surviving joint tenant took free of registered judgments - Re Pollard's Estate [1863] 32 LJ Ch. 657 and York v Stone [1709] 1 Salk 158 approved; M'Ilroy v. Edgar (1881) 7 LR Ir. 521 and Re Scanlon [1897] 1 IR 462 considered; Lord Abergavenny's Case (1604) Pasch 5 Jacobi approved - Judgment Mortgage (Ireland) Act 1850 (13 & 14 Vict, c 29), s 7 - Conveyancing and Law of Property Act 1881 (44 & 45 Vict, c 41 ), s 2(vi) - Local Registration of Title (Ireland) Act 1891 (54 & 55 Vict, c 66 ), ss 21 and 45 - Registration of Title Act 1964 (No 16), ss 62, 69, 71 and 72 - Succession Act 1965 (No 27) s 4(c) - Land and Conveyancing Law Reform Act 2009 (No 27) - Plaintiff's appeal dismissed (16/2009 - SC - 25/11/2010) [2010] IESC 58

Judge Mahon v Lawlor

Facts: The appellant issued six special summonses in 2003 relating to one of the judgment mortgages registered by the appellant against the interest of the defendant in certain loans. The defendant then deceased. The question arose on appeal to the Supreme Court as to the impact of the registration of a judgment mortgage against the interest of a joint tenant in registered land sever the joint tenancy. The second named respondent contended that the registration of a judgment mortgage against the interest of the deceased who was one of two joint tenants did not sever the joint tenancy. It was argued as a result that the second named respondent became the sole owner of the lands by right of survivorship free from the judgment mortgages. The question also arose as to the impact of the Land and Conveyancing Law Reform Act 2009.

Held by the Supreme Court per Finnegan J. (Denham, O'Donnell JJ.), in dismissing the appeal and affirming the Order of the High Court, that it was regrettable that the legislature had not attempted to fully clarify the reliefs and remedies available to a judgment creditor for the benefit of both the judgment creditor and the judgment debtor. The respondent's joint tenancy had not been severed. The surviving joint tenant took free of any burden.

Reporter: EF.

1 Judgment of Mr Justice Finnegan delivered on the 25th day of November 2010

2 Judgment delivered by Finnegan J. [nem diss]

3 The hearing in the High Court proceeded on the basis of an agreed statement of facts as follows:-

Statement of facts

4 2 "1. The above application relates to two portions of land, one comprised in Folio 573F and the other comprised in Folio 47924F of the Register County Dublin. Liam Lawlor and Hazel Lawlor were registered as owners of the lands on the 14 ^th November 1977 and the 13 ^th August 1982 respectively. Both portions of land adjoin each other, the premises Somerton House, being the family home of the late Liam Lawlor and Hazel Lawlor, is comprised in Folio 47924F.

5 2. Both folios are subject to a number of burdens, but the burdens relevant to this application are a series of judgment mortgages relating to orders for costs obtained by the plaintiff which were registered as judgment mortgages in respect of both folios. The judgment mortgages were so registered between July 2002 and March 2004.

6 3. The late Liam Lawlor and Hazel Lawlor were registered as owners of the lands as joint tenants. In his affidavit sworn on the 14 ^th October 2002 the late Liam Lawlor made reference to a deed of gift dated the 9 ^th May 1997 which purported to be an assurance of his interest in the premises comprised in the folios to Hazel Lawlor. Hazel Lawlor was at all times unaware of this deed, the original is missing and was never delivered to Hazel Lawlor, and the parties accept that the same was ineffective.

7 4. Proceedings were commenced by Dermot Coyne by way of special summons in 2003 (Record No. 2003/259Sp). By order of Mr Justice Kearns given on the 24 ^th November 2004 the sum of €273,669.26 was declared well charged on the lands. The said order related to a judgment obtained by Dermot Coyne against the late Liam Lawlor on the 10 ^th February 2003. The judgment mortgage was registered as burdens No. 12 and 13 respectively on the said folios on the 5 ^th March 2003. The said order provided that in default of a dispute in respect of the sum by the late Liam Lawlor that the lands would be sold. By further order dated the 19 ^th October 2004 Mr Justice Kearns amended the previous order as therein provided.

8 5. The plaintiff in the current proceedings was a notice party in respect of the proceedings bought by Dermot Coyne. The present proceedings were issued by the plaintiff on the 24 ^th March 2003 with the present defendant being substituted by order of Mr Justice Kearns made on the 12 ^th January 2004.

9 6. It was accepted that while the proceedings instituted by Dermot Coyne were proceeding there was no need for the plaintiff in these proceedings to pursue the matter.

10 7. By Notice of Motion dated the 23 ^rd October 2006 Dermot Coyne applied to the court for an order discharging the well charging order made by Mr Justice Kearns. At that stage the plaintiffs in these proceedings sought to take over carriage of those proceedings.

11 8. The late Liam Lawlor died on the 22 ^nd October 2005. No attempt has been made to apply for a Grant of Probate in respect of his estate. No monies were paid by the late Liam Lawlor during his lifetime to the defendants (sic) in respect of the said sums. The joint tenancy had not been severed at the date of his death.

12 9. By Notice of Motion dated the 30 ^th July 2007 Hazel Lawlor applied for an order dismissing the plaintiffs proceedings for want of prosecution, for inordinate delay and alternatively striking out the proceedings by reason of the absence of jurisdiction to grant the relief sought, and seeking an order directing a trial of issues on a preliminary point.

13 10. By order dated the 18 ^th January 2008 Ms Justice Laffoy directed that Hazel Lawlor be joined as a co-defendant to the proceedings and directed that the issue of the notice of motion seeking determination of a point of law as a preliminary issue, namely the effect of the registration of a judgment mortgage on the said folio.

14 11. The matter now comes before the court for the determination of that issue."

15 The appellant issued six special summonses on the 24 ^th March 2003 each relating to one of the judgment mortgages which had been registered by the appellant against the interest of Liam Lawlor in the lands comprised in Folio 47924F and Folio 573 of the Register of Freeholders County of Dublin naming Liam Lawlor as defendant. Following the death of Liam Lawlor Noel, Lawlor administrator ad litem of the estate of Liam Lawlor and Hazel Lawlor were by orders of the court substituted as defendants. By leave of the court the second named respondent issued a motion seeking a trial of a preliminary issue determining the status or effect of the registration of the judgment mortgages and an order that the judgment mortgages are void and/or are of no effect.

16 The preliminary issue came on for hearing before the High Court (Laffoy J.). The second named respondent, the moving party on the preliminary issue, contended that the registration of the judgment mortgages against the interest of Mr Lawlor, who was one of two joint tenants, did not sever the joint tenancy and that on the death of Mr Lawlor, the joint tenancy not having been...