Whyte v Cosgrave

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Connor
• Judgment Date: 11 April 2016
• Neutral Citation: [2016] IEHC 190
• Docket Number: 2013 559 SP
• Court: High Court
• Date: 11 April 2016

BETWEEN

OWEN WHYTE

PLAINTIFF

AND

WALTER COSGRAVE

AND

PAULINE COSGRAVE

DEFENDANTS

[2016] IEHC 190

2013 559 SP

THE HIGH COURT

Land & Conveyancing – S. 31 (2) (a) of the Land and Conveyancing Reform Act, 2009 – Partition of joint tenancy – Liability of judgment creditor

Facts: The plaintiff being the judgment creditor sought an order for partition of the lands and the dwelling house of the defendants pursuant to s. 31 (2) (a) of the Land and Conveyancing Reform Act, 2009, for realising the amount of money awarded to him against the first named defendant. The second named defendant being the wife of the first named defendant objected to the partition of the joint property on the basis that the said proceedings were instituted without her knowledge and that it was her family home and she had contributed significantly for repaying the loan pertaining to that home.

Mr. Justice O'Connor refused to grant an order for the partition of the relevant lands and the family house of the defendants. The Court directed that there should be some consultation process between a judgment creditor and the innocent third party holding the property jointly with the judgment mortgage debtor before the issuance of the proceedings for partition. The Court observed that the registration of a judgment mortgage would not severe the joint tenancy and it would not be appropriate to make an order for the partition of the said home as that home had been in continued occupation of the second named defendant without an option for an alternative accommodation. The Court opined that the appropriate remedy for the plaintiff was to seek an order for severance of joint tenancy subject to the satisfaction of the Court that there was an unreasonable withdrawal of consent by the joint tenant in relation to the property that sought to be severed.

EX TEMPORE JUDGMENT of Mr. Justice O'Connor delivered on the 11th day of April, 2016.

1 After the exchange with the Court last Wednesday the 6th of April, 2016, senior counsel for the plaintiff in his reply to submissions of Mr. Power, counsel for the first named defendant, and Mr. Duggan for the second named defendant confined the application in these proceedings (commenced by special summons issued on the 1st of October, 2013 as verified by the plaintiff in his affidavit sworn on the 22nd of August, 2013) to seeking:-

(3) An order for partition of the lands and house comprised in Folio 68629L Co. Dublin pursuant to s.31(2)(a) of the Land and Conveyancing Law Reform Act, 2009 (‘the 2009 Act’) and

(7) An order directing all necessary consequent accounts and enquiries.

2 The Court gave liberty to counsel for the defendants to file written submissions and to senior counsel for the plaintiff to complete his reply today, Monday the 11th of April. Counsel for the plaintiff explained that all matters had been addressed already which had been covered in the written submissions.

3 Firstly the Court expresses its appreciation of the research and written submissions completed in such a short time frame by counsel for the defendants.

Facts

4 The relevant facts might be summarised as follows:-

1) The defendants were registered as joint owners of 66 Plunkett Avenue, Finglas on the 5th of February, 1987, the defendants having paid IR£16,500 for the house.

2) The second named defendant (‘Mrs. Cosgrave’) contributed significantly to the repayment of the loan used to redeem the mortgage. She has lived there since 1987. It is a family home which is visited and used by her children, grandchildren and great grandchildren including...