The High Court has allowed Allied Irish Banks plc to take over mortgage proceedings concerning a property in County Tipperary after the original plaintiff settled its claim with the defendant.
Mr Justice Quinn ruled on 18 May 2021 that all further proceedings concerning Folio 40458F, County Tipperary, would be prosecuted by Allied Irish Banks and the defendant, Con (otherwise Conleth) O’Sullivan. The carriage of the proceedings over that folio was transferred to the bank. The court did not make a new sale order: it held that the 2014 order for sale remained in force and would not be vacated.
Roscrea Credit Union Limited had obtained a well charging order and order for sale in July 2014 over nine folios, including the Tipperary property. The order also directed an account of incumbrances and an inquiry into their priorities. The credit union later settled with O’Sullivan and sought to discharge the order. In July 2020, the court discharged it in respect of eight folios and gave the bank liberty to bring the present application concerning the remaining folio.
Allied Irish Banks had registered two charges against the folio in 2011. Its claims, for €51,656.48 and €183,312.02, were admitted by the examiner in 2016 after the bank responded to an advertisement inviting incumbrancers to submit claims. The bank sought to be substituted for the credit union so it could continue under the existing sale order.
O’Sullivan opposed the application. His affidavit raised objections about the bank’s formalities, proof of judgment and registration, and the absence of court counsel and an auctioneer. Justice Quinn recorded that those objections were not pursued at the hearing, noting that the examiner had already admitted the bank’s claims.
The judge distinguished the application from one seeking a fresh sale order under Order 33, rule 8 of the Rules of the Superior Courts. That rule provides a route for a subsequent incumbrancer to seek a sale in specified circumstances. The bank was instead relying on the existing order and seeking substitution. The court said it did not need to decide whether rule 8 applies only where part of the relevant lands has already been sold.
Justice Quinn concluded that the rules give effect to the principle that a well charging order and sale order benefit incumbrancers with an interest in the property, according to their priorities. Requiring an admitted claimant to start separate proceedings could create parallel cases over the same asset. The court therefore granted the substitution and transfer sought, without determining any sale proceeds or changing the parties’ relative priorities.