The High Court has dismissed an application by William Arnold, executor of Patrick Arnold’s estate, to stop the distribution of money remaining from the sale of 43 Great William O’Brien Street, Cork.
The court also ordered the High Court Accountant to distribute the funds in line with the payment schedule attached to National Irish Bank’s July 2007 application. The order followed an earlier payment to the bank and ended the executor’s request to withhold payments to Sean Bohane and Kathleen O’Connor. The judgment does not state the final amounts to be paid to those two recipients.
The dispute arose in proceedings over an equitable mortgage created in 1989 by depositing the property’s title deeds with the bank. In 1996, the High Court declared the secured principal, interest and costs to be charged on the defendants’ interests in the property and directed an account of encumbrances and their priorities. The property was later sold under a possession order made in 2002.
The Assistant Examiner’s certificate, filed in July 2007, recorded the bank’s equitable mortgage and a judgment mortgage in Bohane’s favour against O’Connor’s interest. It also recorded a third judgment mortgage in favour of TSB Bank, for which no claim was entered or proved. The Examiner found that Patrick Arnold’s affidavit had not established an encumbrance.
Arnold’s executor argued that his late father claimed the beneficial interest in the property and that Bohane’s judgment mortgage, based on a judgment against O’Connor personally, should not attach to that claimed interest. The executor sought a variation of the certificate or a stay while separate proceedings brought by Patrick Arnold against O’Connor and the bank were resolved. Those proceedings, numbered 1992/2810 P and 1995/4494 P, concerned the ownership dispute.
Justice Finlay Geoghegan said the Examiner’s role was to decide claims to encumbrances and their priority, not to determine the competing ownership claims of O’Connor and Patrick Arnold. The executor did not allege an error in the certificate’s treatment of the encumbrances. The court therefore dismissed the request to discharge or vary the certificate.
The judge also refused a stay under the court’s inherent jurisdiction. She noted that the separate ownership proceedings had been in existence before the 1996 mortgage order and that Patrick Arnold had ample time to pursue them. Delaying payment, she concluded, would be unjust to O’Connor and Bohane. The court dismissed the executor’s application and ordered distribution according to the remaining payment schedule.