Dovebid Netherlands bv -v- Whelan t/a Phelan Partnership & Anor [2007] IEHC 239 (16 July 2007)

Dovebid Netherlands bv -v- Whelan t/a Phelan Partnership & Anor [2007] IEHC 239 (16 July 2007)

The interest of the second named defendant acquired by property adjustment order ranks in priority to the plaintiff's judgment mortgage, as the relevant family law proceedings were commenced before registration of the judgment mortgage. Judgment mortgagees are volunteers and take subject to prior unregistered rights, including property adjustment orders. The plaintiff is not entitled to an order for sale in lieu of partition.

Citation
[2007] IEHC 239
Parties
Plaintiff: Dovebid Netherlands Bv; First Defendant: William Phelan trading as the Phelan Partnership; Second Defendant: Denise O’Byrne
Jurisdiction
Ireland
Judgment Date
16 July 2007
Procedural Posture
Well Charging Application for Judgment Mortgage and Order for Sale in Lieu of Partition / Final Judgment
Outcome
Application refused
Legal Topics
Judgment Mortgage, Priority of Interests, Property Adjustment Order, Partition, Lis Pendens
Property Law Family Law Equity Judgment Mortgage Priority of Interests Property Adjustment Order Partition Lis Pendens

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Parties

Dovebid Netherlands Bv

Plaintiff

William Phelan trading as the Phelan Partnership

First Defendant

Denise O’Byrne

Second Defendant

Procedural Posture

Well Charging Application for Judgment Mortgage and Order for Sale in Lieu of Partition / Final Judgment

Legal Issues

  1. 1 Whether a judgment mortgage is well charged on unregistered property subject to a property adjustment order under s. 9 of the Family Law Act, 1995
  2. 2 Whether the plaintiff's interest as judgment mortgagee ranks in priority to the second defendant's interest acquired by property adjustment order
  3. 3 Whether the plaintiff is entitled to an order for sale in lieu of partition

Ratio Decidendi

The interest of the second named defendant acquired by property adjustment order ranks in priority to the plaintiff's judgment mortgage, as the relevant family law proceedings were commenced before registration of the judgment mortgage. Judgment mortgagees are volunteers and take subject to prior unregistered rights, including property adjustment orders. The plaintiff is not entitled to an order for sale in lieu of partition.

Court Disposition

Application refused