The High Court has refused a defendant’s application to remove a judgment mortgage from his interest in a Foxrock property, ruling that money lodged in court as security did not discharge the judgment debt or replace the registered security.
The judgment was delivered by Ms Justice Baker on 25 November 2015. The application concerned a judgment mortgage registered over the defendant’s interest in 16 Kiltragh Drive, Foxrock, a home jointly owned with his wife. They had agreed to sell the property, and the judgment creditor was expected to be paid from the sale proceeds.
The plaintiff had obtained judgment for €455,000, plus interest and costs. Following enforcement steps and payments, the outstanding balance, including interest, was stated to be €426,602.41 as of 6 July 2015. The defendant lodged that sum in court “without admission of liability” under an order made on 16 July 2015. The funds remained in court pending a further order, and the earlier District Court instalment order was vacated. No stay had been placed on the judgment.
The defendant argued that the court should cancel the mortgage because the money in court provided adequate security. The plaintiff opposed the application, arguing that the lodgement did not discharge the debt and did not remove his entitlement to maintain the mortgage.
Justice Baker found no general statutory or equitable power to make the cancellation order sought. She distinguished earlier cases in which a mortgage could be cancelled because it had not validly attached to the debtor’s interest or had been improperly registered. Neither basis was advanced here. A judgment mortgage, she said, creates a statutory charge, although a creditor must obtain a court order to enforce it through measures such as sale.
The judge also found that the lodged money was not immediately available to the plaintiff. It was being held pending a further application or order, while the proposed property sale could make funds available through the mortgage. The lodgement therefore did not replace that security.
The defendant and his wife had separate proceedings seeking more than €11 million from the plaintiff over financial and investment advice they said he had given them. The defendant alleged that the plaintiff was divesting assets to frustrate recovery in those cases. Justice Baker said any application to restrain assets through Mareva-type relief had to be brought in those proceedings and meet the applicable test; it could not be used here to prevent enforcement of an unstayed judgment.
The court refused the relief sought. It did not order a sale of the property or determine the separate claims between the parties.