O'Neill & O'Sullivan v Appelbe

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 12 October 2012
• Neutral Citation: [2012] IEHC 409
• Docket Number: [No. 12 S.P./2012]
• Court: High Court
• Date: 12 October 2012

[2012] IEHC 409

THE HIGH COURT

[No. 12 S.P./2012]

O'Neill & Anor v Appelbe

BETWEEN

MARION O'NEILL AND PATRICK O'SULLIVAN

PLAINTIFFS

AND

FERGUS APPELBE

DEFENDANT

RSC O.63 r9

SMYTH v TUNNEY 2004 1 ILRM 464

CIVIL PROCEDURE IN THE SUPERIOR COURTS 2ED PARA 15-22

ADAM v INSURANCE CORPORATION OF BRITISH COLUMBIA 1985 BCJ 2169

KROPS v IRISH FORESTRY BOARD LTD 1995 2 IR 113

Land law – Practice and procedure – Litigation – Well-charging order – Vacation of order – Reinstatement of previous relief – Statute of Limitations – Whether portion of plaintiff”s claim should be reinstated – Rules of the Superior Courts Order 63, r. 9.

Facts The plaintiffs had issued and served a special summons on the defendant seeking to have a judgment mortgage declared well charged against the defendant”s interests in certain lands (Folio 23312 and another Folio). Subsequently the plaintiffs obtained an order from the Master of the High Court deleting any reference to Folio 23312 from the special summons and the matter was then transferred into the Chancery Special Summons List. Subsequently the plaintiffs realised that they were entitled to pursue the relief sought in respect of the judgment mortgage registered on Folio 23312 and accordingly now sought to vacate the order made by the Master of the High Court (i.e. to undo the application that they had made). On behalf of the defendant it was contended that the plaintiffs had abandoned their claim against Folio 23312 and were not entitled to the reliefs sought. Such relief would not be in accordance with the rules or practice and procedure.

Held by Dunne J in granting the relief sought: There was no evidence to the court of any prejudice to the defendant in the event that the relief sought was granted. In the event that the application was refused the plaintiffs would be put to further expense in issuing further proceedings, and if ultimately successful, the defendant would probably bear the costs of such additional proceedings. From time to time orders were obtained by parties which they subsequently seek to vacate. The balance of justice favoured granting the plaintiffs the reliefs sought to ensure that all the real issues between the parties would be dealt with at the trial of these proceedings. Had the defendant been able to identify some element of prejudice, for example, that a benefit under the Statute of Limitations could be lost, the position might have been different.

Ms. Justice Dunne

1 The plaintiffs herein issued and served a special summons on the defendant seeking to have a judgment mortgage declared well charged against the defendant's interests in lands and premises compromised in two folios, Folio 23312 and Folio 17110, both in Co. Cork.

2 The matter was returned before the Master of the High Court and while the matter was before the Master of the High Court and before the proceedings were admitted to the Chancery Special Summons list, an affidavit was filed on the 12^th April, 2012, by the defendant stating that the judgment mortgage registered in respect of Folio 23312 "is behind a charge registered in favour of Susan Appelbe", the defendant's daughter. Surprisingly, for reasons which are difficult to understand, the plaintiffs on the adjourned date of the 17^th April, 2012, sought and obtained an order from the Master of the High Court deleting any reference to Folio 23312 and the lands described therein from the special summons. That order was granted and the matter was then transferred into the Chancery Special Summons List. It seems that the plaintiffs and their legal advisers were under a misapprehension as to their entitlement to obtain a well charging order where there was a prior charge registered against the property.

3 Following a consideration of this question, it was realised that the plaintiffs were entitled to pursue the relief sought in respect of the judgment mortgage registered on Folio 23312. On that basis, the plaintiffs now wish to vacate the order made by the Master of the High Court herein on the 17^th April, 2012. In other words the plaintiffs now seek to undo the application that they made and to vacate the order that they obtained.

4 The relief sought before this Court is in the following terms:-

"An order vacating the order of this Honourable Court dated the 17^th April, 2012, that amended the special summons herein by deleting any reference to Folio 23312 and/or to the land described in the said Folio 23312 where reference is made to the said Folio 23312 therein."

5 The defendant has filed a replying affidavit. He made the point that at the hearing before the Master of the High Court, the plaintiffs "abandoned their claim against Folio 23312, Co. Cork. They did so when they requested the court to adjourn the element of the summons referring (sic) and to proceed with the other element of the summons relating to Folio 17110, Co. Cork. The Honourable Court refused the application. The plaintiffs then formally withdrew the case insofar as it related to Folio 23312, Co. Cork".

6 The defendant went on to assert that the plaintiffs are not entitled to the reliefs sought herein and that such relief would not be in accordance with the rules or practice and procedure of...