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

• Jurisdiction: Ireland
• Judge: Ms. Justice Laffoy
• Judgment Date: 30 July 2008
• Neutral Citation: [2008] IEHC 284
• Court: High Court
• Date: 30 July 2008

[2008] IEHC 284

THE HIGH COURT

[No. 131SP/2003]

Judge Mahon & Ors v Lawlor & Ors

BETWEEN

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

PLAINTIFFS

AND

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

DEFENDANTS

REGISTRATION OF TITLE ACT 1964 S91(2)

FAMILY HOME PROTECTION ACT 1976

SUCCESSION ACT 1965 S4(C)

RSC O.15 r37

IRWIN v DEASY 2004 4 IR 1

IRWIN v DEASY 2006 2 ILRM 226

WYLIE IRISH LAND LAW 3ED 1997 PARA 7.22

MCILROY v EDGAR 1881 7 LR IR 521

PROVINCIAL BANK v TALLON 1938 IR 361

CONTAINERCARE (IRELAND) LTD v W & ANOR 1982 IR 143

FITZGERALD LAND REGISTRY PRACTICE 2ED 1995 129

SUCCESSION ACT 1965 PART IX

CONWAY ON CO-OWNERSHIP OF LAND, PARTITION ACTIONS & REMEDIES 1ED 2000 PARA 8.94

JUDGMENT MORTGAGE (IRELAND) ACT 1850

SUNGLO LUMBER LTD v MCKENNA 1974 48 DLR (3d) 154

LAW REFORM COMMISSION CONSULTATION PAPER ON JUDGMENT MORTGAGES (LRC CP 30 - 2004) PARA 6.10

REGISTRATION OF TITLE ACT 1964 S71(4)

JOHN MEE THE LAND & CONVEYANCING LAW REFORM BILL 2006 2006 11(4) CPLJ 91

NORTHERN BANK LTD v HAGGERTY 1995 NI 211

PROPERTY (NI) ORDER 1997 SI 1179(NI 8)/1997 A50

JUDGMENT MORTGAGE (IRELAND) ACT 1850 S7

JUDGMENT MORTGAGE (IRELAND) ACT 1850 S6

JUDGMENT MORTGAGE (IRELAND) ACT 1850 S69(1)(i)

JUDGMENT MORTGAGE (IRELAND) ACT 1850 S71(1-3)

JUDGMENT MORTGAGE (IRELAND) ACT 1858 S6

JUDGMENT MORTGAGE (IRELAND) ACT 1858 S3

JUDGMENT MORTGAGE (IRELAND) ACT 1858 S3(4)

JUDGMENT MORTGAGE (IRELAND) ACT 1850 S72

REGISTRATION OF TITLE ACT 1964 S62(6)

REGISTRATION OF TITLE ACT 1964 S62(1)

REGISTRATION OF TITLE ACT 1964 S62(2)

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

REGISTRATION OF TITLE ACT 1964 S71

BRITISH COLUMBIA COURT OF APPEAL RE YOUNG 1968 DLR (2d) 594

POWER v GRACE 1932 2 DLR 793

TEMPANY v HYNES 1976 IR 101

Abstract:

Land law - Judgment mortgage - Severance of joint tenancy - Death - Well-charging order Tribunal of Inquiry -Determination of status of judgment mortgage on death of a spouse

Facts: A judgment mortgage had been registered against the deceased’s interest in certain lands the subject of a joint tenancy. The wife of the deceased sought the determination as to the status of the judgment mortgages and whether the registration of the judgment mortgage had severed the joint tenancy and whether the defendant had sole ownership of the lands.

Held by Laffoy J. that the registration of a judgment mortgage against the deceased interest was subject to the right of survivorship of the defendant in the event that he predeceased her without the joint tenancy having been severed. An order would be made that the judgment mortgage registered against the deceased did not sever the joint tenancy of the spouses and the lands registered on the folios ceased to be affected.

Reporter: E.F

1 Ms. Justice Laffoy delivered on the 30th day of July, 2008 .

History of the proceedings

2 These proceedings and five other similar proceedings (Record No. 2003 Nos. 132SP, 133SP, 134SP, 135SP and 136SP), which I will refer to as the related proceedings, were initiated by special summonses which issued on 24 ^th March, 2003, which named the then Chairman of the Tribunal, the Honourable Mr. Justice Feargus M. Flood, for whom the current plaintiffs were substituted by order of this Court (Kearns J.) made on 12 ^th January, 2004, as plaintiff and Liam Lawlor (Mr. Lawlor) as defendant. In each case the relief sought is a declaration that the monies secured by a judgment mortgage registered against Mr. Lawlor's interest in the lands registered on Folio 47924F and Folio 573 of the Register of Freeholders, County Dublin stand well charged on Mr. Lawlor's interest in the said lands. In each there follows a claim that payment of the monies be enforced "by sale of the lands and/or by the appointment of a Receiver and/or both by such sale and such appointment". The monies in question, which represent the costs awarded against Mr. Lawlor in litigation, aggregate €430, 510.66 together with interest and comprise:-

3 (1) the sum of €47, 454.00 together with interest from 26 ^th October, 2000, secured by a judgment mortgage registered in the Land Registry on 29 ^th July, 2002 (Record No. 2003/131SP);

4 (2) the sum of €78, 846.23 together with interest thereon from 1 ^st February, 2002, secured by a judgment mortgage registered in the Land Registry on 13 ^th March, 2003 (Record No. 2003/132SP);

5 (3) the sum of €40, 066.91 together with interest thereon from 24 ^thNovember, 2002, secured by a judgment mortgage registered in the Land Registry on 29 ^th July, 2002 (Record No. 2003/133SP);

6 (4) the sum of €54, 522.69 together with interest thereon from 19 ^thDecember, 2001, secured by a judgment mortgage registered in the Land Registry on 29 ^th July, 2002 (Record No. 2003/134SP);

7 (5) the sum of €75, 139.59 together with interest thereon from 31 ^st July, 2001, secured by a judgment mortgage registered in the Land Registry on 29 ^th July, 2002 (Record No. 2003/135SP); and;

8 (6) the sum of €134, 481.24 together with interest thereon from 25 ^thJanuary, 2001, secured by a judgment mortgage registered in the Land Registry on 29 ^th July, 2002 (Record No. 2003/136SP).

9 The proceedings were moribund for a number of years because another judgment creditor, Dermot Coyne, who had registered a judgment mortgage for €265, 384.62 against the interest of Mr. Lawlor in the lands registered on both folios on 5 ^th March, 2003, initiated proceedings by way of special summons against Mr. Lawlor in 2003 (Record No. 2003/259SP) (the Coyne proceedings). By order of this Court (Kearns J.) made on 24 ^th November, 2003, as amended by order made by Kearns J. on 19 ^th October, 2004, the sums secured by that judgment mortgage were declared well charged on the lands registered on both folios and the usual order for sale was made in the event of default by Mr. Lawlor in disputing the sum found due on the judgment mortgage and in paying the said sum within the time periods specified. Subsequently, on 29 ^th March, 2004, these proceedings and the related proceedings were adjourned generally, because the primary order in the Coyne proceedings enured for the benefit of all encumbrancers of the lands.

10 Mr. Lawlor died on 22 ^nd October, 2005. Representation has not been raised to his estate. The Court has been informed that the second defendant (Mrs. Lawlor) has always been a notice party to these proceedings and the five related proceedings, presumably in the sense that she was served with notice of the proceedings although not named as a notice party.

11 These proceedings and the five related proceedings were revived in mid-2007 in the following circumstances. By order dated the 21 ^st February, 2007 in the Coyne proceedings the well charging order and order for sale dated 24 ^th November, 2004 was discharged on the basis that the matter had been compromised. At that stage the plaintiffs sought to take carriage of the Coyne proceedings, but subsequently decided not to proceed with that course of action. Instead, by letter dated 18 ^th July, 2007 to P. Delaney and Co., Solicitors, whom I assume had acted for Mr. Lawlor previously, which was copied to Mrs. Lawlor, it was stated that the plaintiffs had taken the decision to re-enter these proceedings and the five related proceedings "for legal reasons in order to protect the Tribunal's security", but it was intimated that the Tribunal did not intend to take any further steps to realise the debts and the matter would be reviewed in mid-2008. Notice to proceed in each of the proceedings was served on 19 ^th July, 2007.

12 Mrs. Lawlor's response was a notice of motion seeking various alternative reliefs ranging from the dismissal of the proceedings for want of prosecution to a direction as to the trial of a preliminary point. By order dated 18 ^th January, 2008, the Court (Laffoy J.), with her consent, ordered that Mrs. Lawlor be joined as a co-defendant in the proceedings. It was further ordered that Mrs. Lawlor be at liberty to issue and serve notice of motion in these proceedings seeking the determination of a point of law as a preliminary issue.

This application

13 On this application, which was issued on foot of the order of 18 ^th January, 2008, Mrs. Lawlor seeks the determination of a point of law as a preliminary issue, namely, the determination of the status or effect of the registration of the judgment mortgages which are the subject of these proceedings and the related proceedings in respect of Folio 47924F and Folio 573 of the Register of Freeholders, County Dublin. She also seeks an order that the judgment mortgages "are void and/or are of no effect".

Title to the lands

14 The lands now registered on Folio 47924F, County Dublin were originally registered on Folio 573. On 14 ^th November, 1977 Mr. Lawlor and Mrs. Lawlor were registered as full owners on Folio 573 with absolute title. They were deemed to be registered as joint tenants, there being no entry in the register to the effect that they were tenants in common in accordance with s. 91(2) of the Registration of Title Act, 1964 (the Act of 1964). Following the death of Mr. Lawlor, Mrs. Lawlor was registered as full owner on Folio 573 on 7 ^th July, 2006. A note was entered on the Folio to the effect that the previous joint ownership entry had been altered. The judgment mortgage which is the subject of the proceedings Record No. 2003/136SP is the first of a number of judgment mortgages which have been registered as burdens against the folio.

15 Folio 47924F was opened in August, 1983, when the dwelling house, Somerton House, and surrounding land was transferred off Folio 573. On 30 ^thAugust, 1983, Mr. Lawlor and...