Provost, Fellows & Scholars of Trinity College Dublin v Kenny

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 22 January 2010
• Neutral Citation: [2010] IEHC 20
• Court: High Court
• Docket Number: [No. 478SP/2008]
• Date: 22 January 2010

[2010] IEHC 20

THE HIGH COURT

[No. 478SP/2008]

Provost, Fellows & Scholars of Trinity College Dublin v Kenny

BETWEEN

THE PROVOST, FELLOWS AND SCHOLARS OF THE UNIVERSITY OF DUBLIN, TRINITY COLLEGE

PLAINTIFF

AND

JAMES KENNY AND PATRICIA KENNY

DEFENDANTS

PARTITION ACT 1876

IRWIN v DEASY (NO 2) 2006 2 ILRM 226 2006/30/6354 2006 IEHC 25

IRWIN v DEASY (NO 1) 2004 4 IR 1 2004/23/5278 2004 IEHC 104

PARTITION ACT 1868 S3

PARTITION ACT 1868 S4

REGISTRATION OF TITLE ACT 1964 S71(4)

NORTHERN BANK LTD v HAGGERTY & ANOR 1995 NI 211

REAL PROPERTY LIMITATION ACT 1833

EVANS v BAGSHAW 1869 8 LR EQ 469

SETON & ORS FORMS OF JUDGMENTS & ORDERS IN THE HIGH COURT OF JUSTICE & COURT OF APPEAL 7ED 1912

DANIEL & ORS CHANCERY PRACTICE 8ED 1914

LOCAL REGISTRATION OF TITLE ACT 1891 S21(2)

MCALLISTER REGISTRATION OF TITLE IN IRELAND 1973

REGISTRATION OF TITLE ACT 1964 S62

REGISTRATION OF TITLE ACT 1964 S62(7)

REGISTRATION OF TITLE ACT 1964 S71

LAND & CONVEYANCING LAW REFORM ACT 2009 S31

LAND & CONVEYANCING LAW REFORM ACT 2009 S117

WYLIE IRISH LAND LAW 3ED 1997 443

NORTHERN BANK LTD v ADAMS UNREP NIHC 1.2.1996

CONTAINERCARE (IRL) LTD v WYCHERLEY 1982 IR 143

O'D v O'D UNREP MURPHY 18.11.1983 1984/8/2595

FAMILY HOME PROTECTION ACT 1976 S4

LAND & CONVEYANCING LAW REFORM ACT 2009 S31(6)

FIRST NATIONAL BUILDING SOCIETY v RING 1992 1 IR 375 1991/9/1956

LAND LAW

Judgment mortgage

Order for sale - Distribution of proceeds - Partition - Mortgage secured against interest of one owner only - âÇÿGood reasons to the contrary' - Principles to be applied - Family home- Jurisdiction - Well charging order - Whether interest of plaintiff in land entitled it to possession of land - Whether plaintiff entitled to maintain a suit for partition of land -Whether court may order sale in lieu of partition -Whether good reason existed to prevent sale and distribution of proceeds -Irwin v Deasy (No 2) [2006] IEHC 25 [2006] 2 ILRM 226 and Containercare Ltd v Wycherley [1982] IR 143 applied - Irwin v Deasy (No 1) [2004] IEHC 104 [2004] 4 IR 1, Northern Bank Ltd v Haggerty [1995] NI 211, Northern Bank Ltd v Adams (Unreported, Master Ellison NI High Court,1/2/1996) and O'D v O'D (Unrep, Murphy J, 18/11/1983) considered - First National Building Society v Ring [1992] IR 375 distinguished - Partition Act 1868 (No 31 & 32 Vict, c 40), ss 3 &4 - Registration of Title Act 1964 (No 16) ss 62, 71 - Local Registration of Title Act 1891 (No 54 & 55 Vict, c 66), ss 21- Land and Conveyancing Law Reform Act 2009 (No 27) ss 31, 117 - Relief granted (2008/478SP - Laffoy J - 22/1/2010) [2010] IEHC 20

Trinity College v Kenny

Facts: The proceedings initiated by special summons were brought by the plaintiff to realize its security created by three judgment mortgages registered against two properties jointly owned by the first defendant and the second defendant, one of which was a family home, affecting only the interest of the first defendant. The aggregate sum due on foot of the judgment mortgages for principal and interest was €663,239.34 and interest was accruing on them since 2009. The plaintiff sought an order for sale of two properties in Donegal and Dartry, Dublin 6. The defendant challenged the jurisdiction of the Court to order the sale of either properties and alleged that the Court had no jurisdiction to order a sale of the Donegal property which was registered land co-owned by the defendants, as the plaintiff only had a judgment mortgage against the interest in the first defendant. The plaintiff alleged that Irwin v. Deasy (No. 2) [2006] 2 ILRM 226 was wrongly decided and the issue arose as to the interpretation of ss. 3 & 4 Partition Act 1868 and s. 71(4) Registration of Title Act 1964. The plaintiff sought to invoke the jurisdiction of the Court pursuant to s. 4 of the Act of 1868 to direct a sale of the property.

Held by Laffoy J. that there would be a well-charging order as to the Donegal property. As to the Dartry property, there would be a usual primary order in a mortgage suit containing a well-charging declaration, a finding as to the sum due to the plaintiff of €663,239.34 and of continuing interest due at the rate of €105.63 per day. There would be an order for sale in the event of the monies found due not being paid within one year. A lacuna in the law had been rectified by ss. 31 & 117 Land & Conveyancing Law Reform Act 2009. While the Court had jurisdiction to make a well-charging order as to the Donegal property for the benefit of the plaintiff on foot of the three judgment mortgages, the Court did not have jurisdiction to order a sale in lieu of partition in reliance on the Act of 1868 as to the Dartry property.

Reporter: E.F.

Judgment of

Miss Justice Laffoy

1 delivered on the 22nd day of January, 2010.

2 In these proceedings, which were initiated by special summons which issued on 12^th June, 2008, the plaintiff seeks to realise its security created by three judgment mortgages which have been registered against two properties jointly owned by the first defendant (Mr. Kenny) and the second defendant (Mrs Kenny). The judgment mortgages affect only the interest of Mr. Kenny in those properties. The sums secured by the judgment mortgages represent the cost of proceedings instituted by Mr. Kenny in 2000, 2002 and 2003 against the plaintiff, which were awarded by the Court to the plaintiff against Mr. Kenny and which have been taxed.

3 There are three judgment mortgages involved, which secure the following sums:

(1) £123,238.18 together with interest thereon from 2^nd March, 2001;

4 (2) £289,666.39 together with interest thereon from 19^th October, 2004; and

5 (3) €69,009.20 together with interest thereon from 26^th March, 2004.

6 As of 28^th October, 2008 the aggregate sum due on foot of the three judgment mortgages for principal and interest was €663,239.34. Interest has continued to accrue at the rate of €105.63 per day from 29^th October, 2009.

7 The properties against which the judgment mortgages are registered are the following:

8 (a) The dwelling house and premises known as 4, Temple Road, Dartry in Dublin City (the Dartry property), which it is common case is the "family home" within the meaning of the Family Home Protection Act1976 (the Act of 1976) of Mr. Kenny and Mrs. Kenny. The title to the Dartry property is unregistered title. It was purchased by Mr. Kenny and Mrs. Kenny in 1995 and their interest is subject to a mortgage dated 3^rd May, 2001 in favour of Bank of Ireland (the Bank of Ireland mortgage). The Bank of Ireland mortgage clearly has priority over the three judgment mortgages registered against the Dartry property, which were registered on 4^th February, 2003, 7^th November, 2007 and 24^th April, 2007 respectively.

9 (b) A bungalow, which is used as a holiday home by Mr. Kenny and Mrs. Kenny and is situate at Portnoo, County Donegal (the Donegal property). The title to the Donegal property is registered title, the relevant folios being Folio 21400 and Folio 43061 of the Register of Freeholders, County Donegal. Mr. Kenny and Mrs. Kenny are registered as full owners with absolute title on each Folio,prima facie as joint tenants. There is registered against each folio a charge, which was registered on 20^th February, 1997, for present and future advances stamped to cover IR£50,000 repayable with interest. Allied Irish Finance Co. Ltd, is the registered owner of the charge. It is not clear from the evidence before the Court how much, if anything, is owing to Allied Irish Finance Co. Ltd. on that charge. The judgment mortgages in issue in these proceedings were registered as burdens on both folios on 25^th April, 2007 against the interest of Mr. Kenny in the Donegal property. At the same time, other judgment mortgages were registered by the plaintiff against Mr. Kenny's interest, but they are not in issue in these proceedings.

10 The relief claimed by the plaintiff in the special summons is, first, a declaration that the monies secured by each of the judgment mortgages in issue stands well-charged on both the Dartry property and the Donegal property. This is a point which is not in controversy, but the relief claimed should be that the monies stand well-charged on the interest of Mr. Kenny alone in the Dartry property and the Donegal property. The plaintiff also seeks a declaration as to the sums due and owing to the plaintiff on foot of the judgment mortgages. The specific relief claimed with a view to realising the monies due to the plaintiff is an order that payment of the amount found due be effected through a sale of the Dartry property and/or the Donegal property, or by the appointment of a receiver, or by both such sale and appointment. Significantly, the plaintiff also seeks, if appropriate and necessary, an order for sale in lieu of partition pursuant to the Partition Acts 1868 to 1876. It does not seek a sale of Mr. Kenny's interest alone in either property.

11 At the hearing, the plaintiff sought an order for sale of both the Dartry property and the Donegal property. Although the reliefs claimed by the plaintiff included an order for possession, that does not arise at this juncture, although it would arise in the event of a Court ordered sale taking place, if it was necessary to give the purchaser of the sold property vacant possession.

12 Counsel for Mr. Kenny, whose argument was adopted by counsel for Mrs. Kenny, challenged the jurisdiction of the Court to order the sale of either the Dartry property or the Donegal property. It is convenient to consider the jurisdiction point in relation to the Donegal property first.

13 It was submitted on behalf of Mr. Kenny and Mrs. Kenny that the Court has no jurisdiction to order a sale of the Donegal property, which is registered land co-owned by Mr. Kenny and Mrs. Kenny, at the suit of the plaintiff which has a...