The High Court rejected a notice party’s application to take over a sale order relating to land in County Wicklow, finding he was not entitled to an order for sale on the application before it. The court discharged the existing well charging order and sale order, and said it intended to strike out the proceedings subject to the question of costs.
Allied Irish Banks plc had obtained the 1996 order against James Vickers and Catherine Vickers. It declared the bank’s secured principal monies well charged on their interest in lands in folio 275, County Wicklow. It allowed the defendants to dispute the amount due and provided for sale if the debt was not disputed and paid within three months.
The defendants did not pay within that period, and the bank proceeded in the Examiner’s office. Before any advertisement for incumbrances was published, however, they settled the bank’s claim. In October 2008, the bank applied to discharge the 1996 orders and strike out the proceedings.
Andrew J. Brennan, the notice party, sought to take over the sale order under Order 33, rule 8 of the Rules of the Superior Courts. A judgment mortgage registered in his favour related to a 1991 judgment for IR£10,050 against James Vickers. Two other judgment mortgages were also registered against the first defendant’s interest. The judgment states all three mortgagees were notified of the bank’s application.
Justice Finlay Geoghegan found Brennan had not proved as an incumbrancer in the proceedings and therefore was not a person to whom the rule applied. She also concluded that, given the time elapsed and the statutory limitation provisions, he was not entitled to an order for sale to enforce the 1991 judgment mortgage. Even if that legal conclusion were wrong, she said she would not exercise discretion in his favour, citing the delay and absence of enforcement steps.
The judge also identified a possible co-ownership issue. The defendants appeared entitled to be registered as co-owners under a 1989 transfer, while Brennan’s judgment and mortgage concerned only James Vickers’s interest. The 1996 order covered both defendants’ interests. The judge said that issue did not need further argument because of her conclusions on the application.
The court dismissed Brennan’s application, discharged the 1996 well charging and sale orders, and, subject to costs, intended to strike out the proceedings.