The Supreme Court has allowed Kathleen Lynn’s appeal against a High Court order for the sale of jointly owned registered land in lieu of partition, holding that the High Court lacked jurisdiction to make that order in these circumstances.
The land includes the family home in Mullingar. Kathleen Lynn and her husband, Gerard Lynn, held the registered freehold as joint tenants. ACC Bank had registered a judgment mortgage against Gerard Lynn’s interest. It brought proceedings seeking, among other relief, a declaration that the mortgage was well charged on his interest and an order for sale of the land.
In December 2005, the High Court declared the mortgage well charged on Gerard Lynn’s interest and ordered that, if he did not pay, the land be sold in lieu of partition. Kathleen Lynn was the sole appellant, although the result also affected her husband.
On appeal, she sought permission to argue that the High Court had no jurisdiction to order sale at the suit of a judgment creditor whose mortgage affected only one of two joint tenants. The point had not been argued at trial. ACC Bank accepted that, if the point could be raised and succeeded, the High Court order could not stand. It opposed allowing the new point and argued that any permission should be conditional on sending the case back to the High Court so it could amend its pleadings and pursue a claim under the Land and Conveyancing Law Reform Act 2009.
The Supreme Court permitted the new point. It said the issue did not depend on new evidence, was raised at the earliest opportunity in the appeal, and had been addressed by both sides. The Court said refusing to hear it would require the Supreme Court to affirm an order made without the necessary jurisdiction.
The Court held that the law on the jurisdiction issue was clear and overturned the High Court’s sale order. It declined to impose the bank’s proposed condition or to decide whether the 2009 Act could support a different claim. The judgment said any such proceedings would have to be considered first by the High Court.
The appeal was allowed. The High Court order was discharged except for the declarations that the judgment mortgage, interest and registration costs stood well charged on Gerard Lynn’s interest, and that €27,239.87 in principal was due to ACC Bank, with interest at 8 per cent from 7 April 2003. The Court did not determine whether the age of the mortgage affected its enforceability.