The High Court has ruled that defects in an affidavit used to register a judgment mortgage did not defeat an application to have the mortgage declared well charged, because the debtor and the property were clearly identifiable.
Dovebid Netherlands BV sought a declaration concerning a judgment mortgage registered over William Phelan’s interest in premises at 49 Mountainview Road, Ranelagh, Dublin. The company had obtained judgment against Phelan on 19 August 2005 for €124,301, with interest from 19 November 2001. It said the judgment was converted into a judgment mortgage on 1 December 2005.
Denise O’Byrne, the second named defendant, challenged the affidavit used to register the mortgage. She argued that it did not meet two requirements of the Judgment Mortgage (Ireland) Act 1850: stating the debtor’s usual or last known place of abode, and identifying the land by the required administrative descriptions. Dovebid’s counsel conceded that the affidavit did not comply on those points, but argued the defects were not fatal.
The issue before Ms Justice Dunne was whether that non-compliance prevented the court from granting the requested declaration. The judgment reviewed earlier cases addressing defects in judgment mortgage affidavits. It said the purpose of the statutory details was to identify the debtor and the property, and that technical non-compliance had not necessarily invalidated registration where identification remained clear.
The judge found that the property was adequately identified and that there could be no confusion about the identity of the judgment debtor. She concluded that the affidavit’s non-compliance did not defeat the well-charging application. The judgment’s concluding paragraph records that conclusion; it does not separately set out an order expressly declaring the mortgage well charged.