S. O'Connor & Son Ltd v Whelan

• Jurisdiction: Ireland
• Judge: Mrs. Justice Denham
• Judgment Date: 01 January 1993
• Neutral Citation: 1992 WJSC-HC 3911
• Docket Number: No. 102 Sp. Ct. 6/1991,[1991 No. 102 Sp.]
• Court: High Court
• Date: 01 January 1993

1992 WJSC-HC 3911

THE HIGH COURT

No. 102 Sp. Ct. 6/1991

O'CONNOR & SON LTD v. WHELAN

BETWEEN

S. O'CONNOR & SON LIMITED

PLAINTIFF

AND

JOHN WHELAN

DEFENDANT

Citations:

RSC O.40 r4

JUDGMENT MORTGAGE (IRL) ACT 1850 S6

JUDGMENT MORTGAGE (IRL) ACT 1858 S3

CREDIT FINANCE LTD V HENNESSY UNREP MCWILLIAM 25.5.79 1979/3/651

LUMLEY V OSBORNE 1901 I QBD 532

Synopsis:

PRACTICE

Affidavit

Deponent - Knowledge - Means - Statement - Omission - Judgment mortgage - Whether registration of creditor's affidavit valid - (1991/102 Sp - Denham J. - 26/7/91) - [1993] 1 I.R. 560

|S. O'Connor & Son Ltd. v. Whelan|

REAL PROPERTY

Incumbrance

Judgment mortgage - Validity - Affidavit - Registration - Deponent - Means of knowledge - Failure of deponent to state such means - Failure to comply with rules of court - Whether registration valid - Judgment Mortgage (Ireland) Act, 1850, ss. 6, 7 - Judgment Mortgage (Ireland) Act, 1858, s. 3 - (1991/102 Sp - Denham J. - 26/7/91) - [1993] 1 I.R. 560

|S. O'Connor & Son Ltd. v. Whelan|

JUDGMENT

Conversion

Judgment mortgage - Creditor - Affidavit - Contents - Deponent - Means of knowledge - Failure to state means - Failure to comply with rules of court - (1991/102 Sp - Denham J. - 26/7/91)

|S. O'Connor & Son Ltd. v. Whelan|

1 Judgment delivered by Mrs. Justice Denham on 26th day of July, 1991

2 This is an application by the plaintiff seeking a declaration that a judgment mortgage be well charged on the defendant's interest in land and premises, and ancillary orders.

3 The plaintiff's case is grounded on the affidavit sworn by Nora O'Connor on 4th February, 1991. Inter alia she stated:

"1. I am the Secretary of the plaintiff in this cause and I make this affidavit with the authority of the said plaintiff and I make it from facts within my own knowledge save as otherwise appears and where so appearing I believe the same to be true and accurate."

4 She deposes that on 9th October, 1987 the plaintiff obtained judgment in the High Court against the defendant for £61,781.46 and costs of £242 making a sum of £62,023.46. Interest at the rate of eleven pounds per cent per annum from 9th October, 1987 was shown on the said order, an attested copy of which was produced. The said deponent then stated that on 23rd October, 1990 the plaintiff complying with section 6 Judgment Mortgage Act 1850 converted the said decree into a Judgment Mortgage over the defendant's interest in the lands and premises, that is Rathana House, 2 Blackglen Road, Sandyford, part of Ballyawley or Balawley in the County of Dublin. An attested copy of the Judgment Mortgage Affidavit sworn by the deponent on 27th September, 1990 was exhibited. The deponent then deposed to the fact that there was due on foot of the said judgment mortgage £62,023.46 besides interest thereon at the rate of eleven per cent per annum from the date of the judgment being 9th October, 1987 up to and including 22nd January, 1989 and at the rate of eight per cent per annum thereafter, together with a sum of £300.00 for costs of registering the said judgment as a mortgage making together a sum of £81,078.36 to date. The deponent stated that the defendant was beneficially entitled to the lands and premises at Rathana House, 2 Blackglen Road, Sandyford, part of Ballyawley or Balawley in the County of Dublin.

5 The Defendant filed no replying affidavit, and did not dispute any of the facts set out before the Court. The defendant brought a technical defence before the Court.

6 It was argued on behalf of the defendant that the affidavit to register the judgment herein as a mortgage is defective as the deponent did not set out her means of knowledge as required by Order 40 Rule 4 of the Rules of the Superior Courts. That that affidavit being defective the plaintiff could not rely on it to ground this application for a well charging order.

7 Order 40 Rule 4 states:

"Affidavits shall be confined to such facts as the witness is able of his own knowledge to prove, and shall state his means of knowledge thereof, except on interlocutory motions, on which statements as to his belief, with the grounds thereof, may be admitted."

8 The affidavit grounding this application sets out the deponent's means of knowledge, see as set out before herein. The affidavit to register the judgment as a mortgage does not. The affidavit to register the judgment as a mortgage is an affidavit mandated by statute: See Judgment Mortgage (Ireland) Act 1850 and 1858. It is not disputed that...