The High Court refused a claim by Trentdale Limited seeking to enforce a judgment mortgage over registered land in Kerry, ruling that the claim could not proceed against Mary O’Shea in either of the capacities advanced by the parties.
The company sought a declaration that the mortgage charged O’Shea’s interest in land recorded in Folio 762 of the Register of Freehold Ownership for County Kerry. It also sought recognition of a debt of €92,903.35, with continuing interest at 8% a year, and orders for partition or sale.
The mortgage arose from costs awarded against O’Shea’s late mother, Margaret O’Shea, after unsuccessful judicial review proceedings. The costs were taxed at €92,903.35 in 2004, and Elmpath Holdings Limited was registered as owner of a judgment mortgage over Margaret O’Shea’s interest in the land. Trentdale said the mortgage was assigned to it in 2010.
The land had been transferred to Margaret O’Shea’s son in 1985, subject to a right of residence for his parents. After his death in 1994, Margaret was the sole beneficiary of his estate, and she later left her estate to her daughter, Mary. Mary accepted in the proceedings that her mother had held a proprietary interest in the land. She argued, however, that no assent had transferred that interest to her personally as beneficiary.
Justice Creedon held that registered land required an assent by a personal representative to vest the property in the person entitled to it, even where that person was also the personal representative. The judge declined to extend the principle in *Mohan v Roche* to the case, relying on the treatment of registered land in *Gleeson v Feehan* and *Dolan v Reynolds*.
The court concluded that Mary had no interest in the land in her personal capacity as beneficiary without an assent under the Succession Act 1965 and the registration legislation. The interest therefore remained vested in her as legal personal representative of her mother’s estate. Since the parties accepted that a claim against her in that capacity was statute-barred, the court refused the relief sought.
The judge did not decide whether the alleged assignment of the judgment mortgage to Trentdale was valid, saying it was unnecessary to address that issue.