St Canices's Kilkenny Credit Union Ltd v Molloy
| Jurisdiction | Ireland |
| Judge | Mr. Justice Kelly |
| Judgment Date | 02 February 2015 |
| Neutral Citation | [2015] IECA 39 |
| Court | Court of Appeal (Ireland) |
| Date | 02 February 2015 |
[2015] IECA 39
THE COURT OF APPEAL
Kelly J.
Irvine J.
Hogan J.
Between
and
Debt - Judgment sum - Judgment mortgage - Well charged on her interest in land - Discharge of debt - Application for extension of time to appeal - Test to be applied - Eire Continental Trading Company v. Clonmel Foods [1955] I.R. 170 - Whether arguable ground of appeal
Facts Ms Molloy, defendant to the proceedings which were before the High Court in 2010, sought an extension of time within which to appeal against an order which was made by Dunne J in October 2013. Ms Molloy was indebted to St. Canice's Kilkenny Credit Union Limited. It brought proceedings against her and recovered a judgment for a sum of €119,000. It converted that judgment into a judgment mortgage and in due course applied to the High Court for an order that the mortgage was well charged on her interest in lands which were registered in her name.
The judge considered Eire Continental Trading Company v. Clonmel Foods [1955] I.R. 170 and referred to the three conditions laid down therein when considering whether to grant an extension of time to appeal. The test comprised: 1. the applicant has to show a bona fide intention to appeal formed within the permitted time; 2. it must be demonstrated that something like a mistake occurred and that is the reason for the delay having taken place; and 3. it must be established that there is an arguable ground of appeal.
Held The judge concluded Ms Molloy had not demonstrated an arguable ground of appeal. The judge understood Ms Molloy did not want her debt to be discharged by selling property which may well have been in the beneficial ownership of her parents. However, she was the only registered owner in relation to the relevant folio. The judge said it was not a matter that was going to be dealt with on any appeal. It was a matter that was going to be dealt with before the Examiner of the High Court, either in the current judgment mortgage proceedings or in well charging proceedings brought against her parents in respect of the debts that they had with the credit union.
The judge refused the application for an extension of time.
It failed all three tests set out in the Eire Continental jurisprudence. Further, it had not been established that there was any arguable ground of appeal.
-Application dismissed
1. This is the application of Monica Molloy who is the defendant in these proceedings which were before the High Court in 2013. She now seeks from this Court an extension of time within which to appeal against an order which was made by Dunne J. in October 2013.
2. The background to the case can be summarised as follows. Ms. Molloy has a debt which she owes to St. Canice's Kilkenny Credit Union Limited. It brought proceedings against her in the High Court and recovered a judgment for a sum of €119,000. It converted that judgment into a judgment mortgage and in due course applied to the High Court for an order that the mortgage was well charged on her interest in lands which are registered in her name. That order was made in its favour on the 7 th October, 2013. The order follows the usual pattern of what one would call a "primary order". It declared that the monies were well charged on the lands and it ordered that in default of the payment of them, the lands be sold at such time and place and subject to such conditions of sale as would be settled by the court. Dunne J. then went on to direct the Examiner of the High Court to conduct accounts and inquiries, two of which I mention. The first is an account of all encumbrances subsequent as well as prior to and contemporaneous with the plaintiff's demand and second, that an inquiry as to the respective priorities of all such demands. The matter has proceeded before the Examiner in accordance with that order.
3. Ms. Molloy does not deny that she owes the money to the credit union, but she seeks nonetheless to appeal the order of Dunne J. I have to say that it is not immediately apparent to me what advantage there would be to her even if the extension of time were granted, but first of all I must deal with the application for the extension of time on its merits.
4. Applications for extensions of time within which to appeal are frequently made to this Court. The Court has to exercise a discretion as to whether or not to grant such...
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