Trentdale Ltd v O'Shea
| Jurisdiction | Ireland |
| Judge | Ms. Justice Creedon |
| Judgment Date | 25 January 2018 |
| Neutral Citation | [2018] IEHC 47 |
| Docket Number | [2014 166 SP] |
| Court | High Court |
| Date | 25 January 2018 |
[2018] IEHC 47
[2014 166 SP]
THE HIGH COURT
Lands & Conveyancing – Land and Conveyancing Law Reform Act 2009 – Judgment mortgage – Auxiliary reliefs – Monies due and owing – Sole beneficiary
Facts: The plaintiff sought a declaration that the judgment mortgage registered over the relevant lands stood well charged over the interest of the defendant. The plaintiff also sought auxiliary reliefs. The plaintiff alleged that the benefit of judgment mortgage was assigned to the plaintiff. The defendant claimed that the purported assignment was not sufficient to transfer a legal or an equitable interest in either a charge or a judgment mortgage over the lands.
Ms. Justice Creedon denied the relief sought by the plaintiff. The Court held that the claim against the defendant as the legal representative of her mother's estate was statue-barred. The defendant did not enjoy any interest in her mother's estate, in her capacity as the sole beneficiary. The Court held that in the case of registered land, an assent was required to be made by a personal representative in order to vest property in the party entitled thereto, even if the said party was the personal representative herself.
The plaintiff seeks a declaration that a judgment mortgage registered over lands comprised and described in Folio 762 of the Register of Freehold ownership for the County of Kerry stands well-charged over the interest of the defendant.
In addition, the plaintiff seeks auxiliary reliefs, including a declaration that the sum due and owing to the plaintiff, is the sum of €92,903.35 with the continuing interest on the principal sum of 8% per annum; and an order for partition of the lands and sale of the defendant's interest in the lands or an order for sale of the lands and distribution of the proceeds of sale.
This case arises as a result of unsuccessful judicial review proceedings (Record No. 2003 129 JR), which were brought by Margaret O'Shea the defendant's late mother, against Kerry County Council, as respondent, and Elmpath Limited and Elmpath Holdings Limited as notice parties.
A costs order was made against Margaret O'Shea on the 10th of November, 2003.
On the 23rd of August, 2004, costs were taxed and ascertained in the sum of €92,903.35. After taxation, Elmpath Holdings Limited applied to the Land Registry to convert the order for taxed costs to a judgment mortgage against the interest that Margaret O'Shea retained in the lands described above.
Elmpath Holdings Limited was registered as the owner of the said judgment mortgage on the 14th of December 2004.
The defendant's father (hereinafter called “Daniel P. O'Shea, Sr.”) transferred the lands as described to the defendant's brother (hereinafter called “Daniel P. O'Shea, Jr.”) on the 23rd September, 1985, subject to a joint right of residence in favour of Daniel P. O'Shea, Sr. and the defendant's mother, Margaret O'Shea.
It is common case that upon the death of Daniel P. O'Shea, Sr. on the 21st of September, 1986, Margaret O'Shea took a sole right of residence for her life by survivorship.
Daniel P. O'Shea, Jr. died intestate and without issue on the 15th November, 1994.
The plaintiff alleges that Margaret O'Shea, as sole beneficiary of Daniel P. O'Shea, Jr's estate, acquired a proprietary interest in the lands.
Before this court, notwithstanding a previous averment to the contrary, the defendant conceded that Margaret O' Shea held a proprietary interest in the lands in question.
On the 24th May, 2009, Margaret O'Shea died testate. In her last will and testament dated the 8th April, 2009, she bequeathed her entire estate to the defendant.
The plaintiff alleges that the defendant therefore acquired Margaret O'Shea's interest in the lands.
The defendant asserts that as personal representative of Margaret O' Shea's estate, she never affected an assent, transferring any interest in the lands to herself as sole beneficiary. As a result, the defendant reasons that no interest was or could have been transferred to her in her personal capacity as beneficiary.
The defendant argues that the case cannot succeed against her, either as personal representative of her mother's estate or in her personal capacity, as sole beneficiary. She makes this assertion on the following basis:
(1) In relation to the defendant's capacity as personal representative of Margaret O'Shea's estate, the defendant argues that the case is statute-barred by s. 9 of the Civil Liability Act, 1961. As a result, this claim cannot succeed without an effective claim against the estate, because a declaration that the debt remains unsatisfied is an implicit but essential part of a well-charging declaration and cannot be made against anyone but the estate, as the sole entity liable for the debts of the testatrix.
(2) The defendant argues that the claim cannot succeed against her in her personal capacity, as a beneficiary, as she has no proprietary interest in the land, whether in law or in equity, having made no assent to herself, as sole beneficiary.
The plaintiff contends that on the 15th of March, 2010 by an ordinary resolution of Elmpath Holdings Limited, the benefit of the judgment mortgage described above was assigned to the plaintiff.
Said transfer is recorded in the minutes of the board meeting, which was convened in order to seek approval of the shareholders for the transfer of all assets of Elmpath Holdings Limited to the plaintiff in the wake of the company's dissolution.
The plaintiff therefore asserts that it is the appropriate applicant in the instant case, being the assignee of the judgment mortgage in question.
The defendant contends that the purported assignment was not sufficient to transfer a legal or an equitable interest in either a charge or a judgment mortgage over the lands and therefore, holds that the plaintiff has no interest in the judgment mortgage and no standing to bring such an application. The defendants contend that the plaintiff cannot seek relief without joining Elmpath Holdings Limited or the Minister for Finance to the proceedings.
The Judgment Mortgage (Ireland) Acts 1850 and 1858 were repealed and replaced by the new simplified, statutory provisions contained in Part II of the Land and Conveyancing Law Reform Act 2009 (henceforth ‘the Act of 2009’).
It is accepted however, that S 6 of the Judgment Mortgage Act 1850 governs the registration of judgment mortgages created before 2009.
Turning to the first issue, that is, whether the defendant is the correct responding party to proceedings: the court is cognisant of the defendant's arguments that if the plaintiff was to sue her as personal representative of her late mother's estate, they would be statute-barred from doing so, under S 9 of the Civil Liability Act, 1963. This seems to be common case between parties, as the plaintiff has repeatedly asserted, during proceedings and in subsequent written submissions, that it is suing the defendant in her capacity as sole beneficiary of her mother's estate and the only person entitled to an interest in the land.
With regards to suing the defendant in her personal capacity, the defendant makes two assertions:
a) That there has been no assent, express or implied, made by the defendant as personal representative of her mother's estate, to herself as sole beneficiary and;
b) Therefore, she does not currently enjoy any proprietary interest in the land, whether in law or in equity.
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