Marion O'Neill and Another v Fergus Appelbe

CourtSupreme Court
Docket NumberAppeal No. 121/2013
JudgeMr Justice O'Donnell
Judgment Date10 Apr 2014
JurisdictionIreland
Neutral Citation[2014] IESC 31

[2014] IESC 31

THE SUPREME COURT

O'Donnell J.

McKechnie J.

Laffoy J.

Appeal No. 121/2013
O'Neill & O'Sullivan v Appelbe

Between:

Marion O'Neill and Patrick O'Sullivan
Respondents/Plaintiffs

And

Fergus Appelbe
Appellant/Defendant

SMYTH v TUNNEY 2004 1 ILRM 464

DELANEY & MCGRATH CIVIL PROCEDURE IN THE SUPERIOR COURTS 2ED 2005

SMYTH v TUNNEY & ORS 2009 3 IR 322

RSC O.26 r1

RSC O.26

Legal Error – Judgement Mortgage – Practice and Procedure – Special Summons – Claim – Relief – Appeal – Legal Analysis – Costs – Liability - Notice of Discontinuance

Facts: The appellant/defendant, Mr Fergus Appelbe, appealed against the judgment of the High Court ‘of the 8th of October 2012 delivered on the 12th November 2012, perfected on the 30th of January 2013’. That judgement declared that the principle monies secured by a judgment mortgage created by registration of the judgment mortgage affidavit, certified by the Central Office on the 5th of August 2010 and registered in the Property Registration Authority on the 12th of August of the same year, together with costs, interest thereon and the costs of registration, and the costs of the proceedings, stood well charged on the defendant”s interests in lands and premises as set out in the second schedule to the said Order. The amount due was €621,779.30, with interest at 8% from the 2nd of July 2010. The defendant was to be at liberty to dispute the sum within one month from the date of service of the Order and if in default there was to be an Order for Sale of the premises. Accounts and inquiries were to be taken in the Examiner”s Officer, the plaintiff recovered the costs of the proceedings and a stay was refused. For present purposes the most important aspect of the Order was the second schedule identifying the lands on which the judgment mortgage stood well charged pursuant to the said Order. Those lands were ‘ALL THAT AND THOSE the lands described in Folios 23312 and 17110, County Cork’. However the appellant, Mr Fergus Appelbe, did not contest that Order: instead his complaint was directed towards an application made by the respondents, heard on the 8th of October 2012 and granted by the High Court on the 12th October 2012 when a written judgment was delivered, as a result of which the claim in respect of Folio 23312 was reinstated in the proceedings.

Held by Justice O”Donnell that the service of a notice of discontinuance was no bar to the issuance of further proceedings making the same claim, and it was accepted that the same position applied in this case, even if the Court overturned the judgment of the High Court of the 12th of October. However, in any such case, Justice O”Donnell reasoned that his court and the High Court, in subsequent proceedings, would retain the jurisdiction to make an order of costs which could take into account its views of the justice of the proceedings. Acknowledging that it was unclear whether or not Mr Appelbe would be able to obtain an order for costs, Justice O”Donnell said that it must be apparent that for the defendant to succeed, it was necessary to characterise the Order made by the Master of the High Court on the 17th of April 2012 as both a withdrawal of the claim in relation to Folio 23312 and moreover, the equivalent of a notice of discontinuance. In examining all the evidence and facts before him, Justice O”Donnell noted that a notice of discontinuance is a unilateral act made on the part of the plaintiff bringing to an end the whole or any part of his claim and carrying with it an automatic liability for costs. Reasoning that this rule was not invoked, as proceedings had been amended, Justice O”Donnell acknowledged that the Court had the power to amend the proceedings to delete the claim in relation to the Folio, and also accordingly had power to re-amend the proceedings to include it. In his view it was not necessary to become involved in the almost theological question of whether the case was an appeal by a party aggrieved against an order of the Master, or indeed whether there was power in the High Court to vacate an order made by the Master. In concluding his judgement, Justice O”Donnell stated that the most appropriate order was to amend the proceedings to include the claim in relation to Folio 22312. Acknowledging that this order was essentially as that made by the High Court, it was stated that the defendant had no possible defence to the application for a well charging order and the ancillary orders sought and made. Consequently, the appeal was dismissed.

Mr Justice O'Donnell
Judgment delivered by O'Donnell J
1

This case reached this Court by a route marked by a series of misunderstandings, misapprehensions, mistakes, and worse. It is with some trepidation therefore that the Court delivers its conclusions on the issues in this accident prone case.

2

The appellant/defendant, Mr Fergus Appelbe, appeals against the judgment of the High Court "of the 8th of October 2012 delivered on the 12th November 2012 perfected on the 30th of January 2013". Even at this point it is necessary to clarify certain matters. The Order of the Court made on the 12th of November 2012 and perfected on the 30th of January 2013 declared that the principal monies secured by a judgment mortgage created by registration of the judgment mortgage affidavit, certified by the Central Office on the 5th of August 2010 and registered in the Property Registration Authority on the 12th of August of the same year, together with costs, interest thereon and the costs of registration, and the costs of the proceedings, stood well charged on the defendant's interests in lands and premises set out in the second schedule to the said Order. The amount due on foot of the judgment mortgage was €621,779.30, the interest at 8% from the 2nd of July 2010. The defendant was to be at liberty to dispute the sum within one month from the date of service of the Order and in default there was an Order for Sale of the premises. Accounts and inquiries were to be taken in the Examiner's Officer, the plaintiff recovered the costs of the proceedings and a stay was refused. For present purposes the most important aspect of the Order was the second schedule identifying the lands on which the judgment mortgage stood well charged pursuant to the said Order. Those lands were "ALL THAT AND THOSE the lands described in Folios 23312 and 17110, County Cork". However the appellant, Mr Fergus Appelbe, who appeared in person, did not contest that Order: instead his complaint in this appeal was directed towards an application made by the respondents, heard on the 8th of October 2012 and granted by the High Court on the 12th October 2012 when a written judgment was delivered, as a result of which the claim in respect of Folio 23312 was reinstated in the proceedings.

3

The judgment the subject matter of the judgment mortgage affidavit had been obtained in the High Court on the 2nd of July 2010. The papers before this Court do not disclose the subject matter of those proceedings. It appears that Mr Appelbe has also appealed the Order (which again was not stayed by the High Court). Mr Appelbe admits that he has done nothing to advance that appeal. In his replying affidavit on the well charging proceedings he states that he does not accept that the plaintiffs are owed money by him. He also states that the first named plaintiff received assignment of a claim from her husband and the consequence thereof, he alleges, was "to distance her husband and the second named plaintiff from being subject to cross-examined on my behalf". It is not clear what this refers to nor is it of relevance to any of the proceedings in this case. Among the few matters that are not in dispute in this case is that a judgment was obtained in the High Court against the defendant which has not been stayed, which was capable of being registered as a judgment mortgage, and which was so registered.

4

The originating proceedings herein were brought by special summons seeking a declaration that the judgment mortgage was well charged in two Folios, 23312 and 17110, and ancillary orders which were in the event granted by the Order under appeal. The matter came before the Master's Court in the ordinary way and a replying affidavit was sworn by Mr Appelbe. Paragraph 5 of that affidavit contained the following statement:

"The judgment registered against Folio 23312 County Cork is behind a charge registered in favour of Susan Appelbe at Entry 5 at Part 3 of the said Folio. Susan Appelbe is my daughter."

5

The precise relevance of this statement to the proceedings was not clear since the existence of a prior charge is only relevant to priority and does not prevent the making of a well charging order or any ancillary orders, but it produced the first of the many missteps in this case.

6

5 The above mentioned affidavit was filed on the 12th of April 2012. On the 17th of April...

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