The High Court has ruled that any interest Mary Casey may receive in a family home through separate family law proceedings would rank ahead of a judgment mortgage registered by ACC Bank against her husband’s interest in the property. The court postponed further consideration of ACC’s case until those proceedings determine Casey’s interest.
Mr Justice Clarke’s judgment concerns a property in Cappateemore East, Co Clare, registered in the names of Casey and Vincent Markham. ACC had obtained judgment against Markham for €20,166.96 plus €380 costs in March 2004, then registered a judgment mortgage against his interest in the property in July 2004. The debt was stated to have risen to €21,744.88 by December 20, 2004, with interest continuing to accrue.
Casey had begun judicial separation proceedings in March 2003, seeking ancillary relief that included an order requiring Markham to transfer his interest in the family home to her. Those proceedings were awaiting a hearing date. No lis pendens had been registered on the land folio, and the judgment said there was no evidence ACC knew of the family proceedings when it registered its mortgage. Casey also appeared not to know of the mortgage until she received correspondence about ACC’s intended proceedings.
ACC sought a declaration that the debt and continuing interest were due and that its mortgage charged Markham’s interest. It also sought partition or, more likely, a sale instead of partition. Markham did not defend the case. The judge said ACC appeared prima facie entitled to a well-charging order over Markham’s interest, but whether it could obtain partition or a sale would require argument later.
The issue decided at this stage was priority. Casey argued that any interest transferred to her under the family proceedings would rank ahead of ACC’s judgment mortgage. ACC disputed that position. Applying the earlier decision in A.S. v. G.S. and the Registration of Title Act 1964, Clarke J held that a judgment mortgagee is a volunteer and takes subject to relevant unregistered rights arising from family proceedings already underway when the mortgage affidavit was registered.
The court did not decide what share, if any, Casey would receive, or make an order transferring property to her. It ruled that any interest she may become entitled to through the family proceedings would have priority over ACC’s mortgage. Further consideration of ACC’s claims was postponed until those proceedings conclude and Casey’s interest is authoritatively determined.