Roe v McMullan

• Jurisdiction: Ireland
• Judgment Date: 08 December 1928
• Date: 08 December 1928
• Court: High Court (Irish Free State)

High Court.

Roe v. M'Mullan.

PETER ROE

Plaintiff

and

LOUIS M'MULLAN, Defendants (1)

Practice - Summary summons - "Uncontested application" - Jurisdiction of the Master of the High Court - Moneys due on mortgage declared well charged - Sale ordered in default of payment - Rules of the High Court and Supreme Court, 1926, Or. XIII, r. 2 (xiii) - "Order for final judgment in uncontested applications" - Or. XV, r. 4 - "In all uncontested cases, the Master may deal with the matter summarily" - Extent of jurisdiction, conferred.

Motion by the defendant to set aside an order made by the Master of the High Court, dated the 25th of February, 1927, declaring certain moneys therein mentioned well charged, and directing the sale of certain premises set out in the schedule to the said order, upon the ground that the Master under the statute and rules in that behalf, or otherwise, had no jurisdiction to make the order. The plaintiff, Peter Roe, had issued a summary summons to realise the amount due on a mortgage made between the defendant, Louis M'Mullan, and the plaintiff, affecting the defendant's interest in the premises. The facts

are summarised in the head-note, and are fully stated in the judgment of Sullivan P.

The order of the Master was in the following terms:—"Upon the application of counsel for the plaintiff, this day made pursuant to summons, dated the 4th day of February, 1927, and upon reading the said summons, the affidavit of plaintiff, filed on the 4th day of February, 1927, and the documents and exhibits therein referred to, including an indenture of mortgage, dated the 30th day of April, 1925, and made between Louis M'Mullan of the one part and Peter Roe of the other part, affecting the defendant's interest in the lands and premises set forth in the Schedule hereunto annexed, and counsel for defendant having appeared and asked for an adjournment on the previous hearing on 18th February, 1927, but no person now appearing for defendant: The Master doth declare that the principal moneys secured by the said indenture of mortgage and the interest thereon, together with the costs hereinafter awarded, stand well charged on the defendant's interest in the lands and premises set forth in the Schedule hereto annexed. And it appearing to the Master that there is due to the plaintiff on foot of the said indenture of mortgage the sum of £500 for principal and the sum of £5 16s. 11d. for interest down to the 1st day of February, 1927, making together the sum of £505 16s. 11d., it is ordered that the defendant be at liberty to come in and dispute last-mentioned sum within one month from the date of the service of this order upon him, and, in default of his so disputing said sum within the time aforesaid, and in default of payment to the plaintiff of the said sum, together with further interest on the principal sum of £500 at the rate of £7 per cent. per annum until date of payment and the costs hereinafter awarded within three months from the date of service aforesaid, it is ordered that the said lands and premises be sold, that said sale be retained in this Court, and that the following inquiries be made in the Examiner's Office, that is to say:—No. 1. An inquiry what incumbrances (if any) affect the said lands and premises, or any and what parts thereof. No. 2. An inquiry what are the respective priorities of such incumbrances (if any). And it is further ordered that the plaintiff do have his costs of and incident to this application and order and proceedings hereunder when same shall have been taxed and ascertained in equal priority with his demand. The costs of counsel upon this application to be allowed. A copy of this order to be lodged in the Examiner's Office before making any further application herein." The schedule to the order contained the particulars of the premises.

The arguments are referred to in the judgments, with the exception of those dealing with the question whether the Rules of the High Court and Supreme Court, 1926, were inconsistent with the Constitution of the Irish Free State, as, on the conclusions come to by the Court on the interpretation of the rules, it was unnecessary for the Court to express an opinion on this question.

Or. XIII, r. 2 (xiii), of the Rules of the High Court and Supreme Court, 1926, provides that the Master of the High Court may make "an order for final judgment in uncontested applications". Or. XV, which is headed,"Hearing of proceedings commenced by summary summons," provides (r. 4): "Proceedings commenced by summary summons shall be heard on affidavit. In all uncontested cases the Matter may deal with the matter summarily . . ."

Plaintiff issued a summary summons claiming a declaration that by virtue of an indenture of mortgage made between the defendant and the plaintiff the plaintiff was entitled to a mortgage upon the defendant's interest in certain premises; an account of the moneys due to the plaintiff for principal, interest, and costs; payment of the amount found to be due; and, in default of payment, a sale or the appointment of a receiver. On the date fixed for the hearing before the Master of the High Court the defendant obtained an adjournment, but at the adjourned hearing he did not appear. The Matter made an order declaring the principal moneys secured by the mortgage and the interest thereon, together with the costs awarded, well charged on the defendant's interest in the premises; setting forth the amount appearing to be due, ordering that the defendant be at liberty to dispute the amount within one month, and, in default of his so disputing the amount, and in default of payment, ordering that the premises be sold, and that inquiries for incumbrances and their priorities be made. The defendant appealed to the High Court.

Held, that the Master had no jurisdiction to make the order, as it was not "an order for final judgment" within the meaning of Or. XIII, r. 2 (xiii), and the words in Or. XV, r. 4, "in all uncontested cases the Master may deal with the matter summarily," did not confer jurisdiction, as they dealt with procedure merely.

Stanbdard Discount Co. v. La Grange, L.R. 3 C.P.D. 67, and Onslow v.Commissioners of Inland Revenue,25 Q.B D. 465, applied.

Cur. adv. vult.

Sullivan P. :—

In this case the plaintiff sued the defendant on a summary summons, dated 4th February, 1927, claiming:—

(1) A declaration that by virtue of an indenture of mortgage, dated the 30th April, 1925, made between the defendant and the plaintiff, the plaintiff is entitled to a mortgage upon the estate and interest of the defendant in certain premises therein mentioned.

(2) An account of the moneys due to the plaintiff for principal, interest, and costs on foot of said indenture of mortgage.

(3) Payment of the amount found to be due on the taking of the said account.

(4) In default of payment, a sale of the defendant's interest in the said premises, or a receiver, or both.

(5) All necessary accounts and inquiries.

(6) Further relief.

(7) Costs.

The summons required the defendant to attend at the hearing before the Master on the 18th February, 1927, and notified the defendant that an affidavit of the plaintiff, filed on the 4th February, 1927, would be used by the plaintiff on the hearing.

On the 18th February counsel on behalf of the defendant appeared before the Master and asked for an adjournment, and the hearing of the summons was adjourned to the 25th of February. On the 25th February, when the summons was called, there was no appearance for the defendant, and counsel for the plaintiff applied for an order in the terms of the summons. The Master thereupon made an order, dated 25th February, 1927, in the following terms:—[Reads order.]

On the 12th October the defendant served a notice of motion to set aside and discharge that order on the ground that the Master had no jurisdiction to make it; and on the 17th October the defendant served notice upon the Attorney-General (pursuant to Order XX of the Rules of the High Court and Supreme Court, 1926), "that the question of the validity of the 36th section of the Courts of Justice Act to give any validity to any Rule of Court purporting to give the Master power to decide any question dealing with the rights of parties, and also the validity of the 5th section of the Courts Officers Act will arise" in the course of the argument in this case.

On the hearing of the motion, Mr. Dickie, on behalf of the plaintiff, contended:—

(1) That the Rules of Court did not confer upon the Master jurisdiction to make the order of the 25th February, 1927; alternatively:—

(2) If they did, they were ultra vires, being inconsistent with the provisions of Art. 64 of the Constitution.

The first branch of this argument rests upon the construction of the Rules in question, and in particular upon the construction of Orders XIII and XV.

The claims which may be brought by summary summons are specified in Order III. It is admitted that the claim in the present case comes within Rule 1 (iv) (t) of that Order, and that procedure by summary summons was properly adopted by the plaintiff.

Order XIII is entitled "Orders by the Master." Rule 1 provides that "the Master may make any order which was a Side Bar Order under the practice heretofore in force."

Rule 2 authorises the Master to make any of the orders mentioned in i to xiii of that Rule. It is admitted that unless the Master's order in the present case comes within xiii as"an order for final judgment in an uncontested application," it is not one of the orders enumerated in the Rule.

I am satisfied that the plaintiff's application to the Master was an "uncontested application." The defendant had not filed any affidavit in answer to the plaintiff's affidavit, and no person appeared on his behalf when the summons was heard. I cannot accept Mr. Dickie's contention that an application is riot uncontested unless the person upon whom notice of such application is...