Myler v Pussy's Nite Club

• Jurisdiction: Ireland
• Judge: Justice McWilliam
• Judgment Date: 11 December 1979
• Neutral Citation: 1980 WJSC-HC 372
• Date: 11 December 1979
• Court: High Court
• Docket Number: No. 1472 P/1978

1980 WJSC-HC 372

THE HIGH COURT

No. 1472 P/1978

MYLER v. PUSSY'S NITE CLUB

BETWEEN:

BRENDAN MYLER & CARMEL MYLER

v.

MR. PUSSY'S NITE CLUB LIMITED, LIAM LEDWICH, ALAN AMSBY and TONY KEOGAN and ALLIED IRISH BANKS, Third Party.

1 Judgment delivered by Mr. Justice McWilliam on the 11 day of December 1979 .

2 This is an application by the Plaintiffs for an Order of garnishee attaching a sum of £5,000 payable by the Sum Alliance & London Insurance Group, hereinafter called the Insurance Company, in respect of damage by fire to premises at 49, Parnell Square, Dublin, owned by the first-named Defendant, hereinafter called Pussy's.

3 On 27th July, 1979, the Plaintiffs obtained judgment against all the Defendants except Alan Amsby for the sum of £12,000 and £1,900 for costs.

4 The Defendants, Liam Ledwich and Tony Keogan, hereinafter called the Insured, are directors of Pussy's and, from 19th September, 1978, until 18th September, 1979, insured the said premises in their own names with the Insurance Company, which has confirmed its liability to pay the sum of £5,000 on foot of the said policy.

5 The premises are held by Pussy's for the residue of a term of 900 years under an Indenture of Lease made on 10th October, 1759, which contained a covenant by the lessee to repair but did not contain any covenant to insure.

6 By resolution of Pussy's of 30th September, 1977, the Defendant, Alan Amsby, was authorised to deposit the title deeds of the said premises with the Third Party by way of security for the debts of Pussy's due to the Third Party, and the Defendant, Alan Amsby, did deposit the said title deeds with the Third Party on 30th September, 1977.

7 Notice of this deposit was furnished to the Insurance Company on 31st January, 1979 . The fire which damaged the premises occurred in March, 1979.

8 The Third Party is opposing this application on the ground that it has an interest in the premises, that the Plaintiffs cannot have a greater interest in the money than the insured, and that the Third Party has a right of some sort to have its security maintained, although no authority has been cited to me for this proposition. The argument is, to some extent, based on the fact that the lessee under the lease was bound to maintain and repair the premises. As regards this submission I would refer to paragraph 1032 at page 522 of Halsbury's Laws of England Vol. 17. It is here stated that a contract of fire insurance is a personal contract which does not pass with the property and that, where mortgaged property has been insured by the mortgagor and is destroyed by fire, the mortgagee is not, in the absence of a covenant...