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Stay on order for sale of family home of judgment debtor conditional on instalments

By: Mark Tottenham BL

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High Court, having declared that a judgment mortgage was well charged on a dwelling house, grants an order for sale of the house, subject to a stay conditional upon the payment by the defendant to the plaintiff of €700 per month, as well as a lump sum payment of €5,000 by the end of the year, on the grounds that: (a) the property was jointly owned by the judgment debtor and his wife, and they had a young family; (b) the property was in negative equity, and if it were sold it would be unlikely to give rise to any payment to the judgment creditor; (c) if the property were sold, the couple and their children would be rendered homeless, with an unsecured debt to their primary mortgage holder; and (d) the evidence was that the defendant's business would be likely to be successful such that it should be possible to meet the required payments.

Judgment mortgage - application for declaration that judgment mortgage was well charged on registered property - partition of lands - sale of property s. 117 and/or s. 31 of the Land and Conveyancing Law Reform Act 2009 - judgment in sum of €30K arising from claim against builder - judgment mortgage registered against principal private residence of builder and his wife - wife joined as co-defendant - whether oppressive or disproportionate for family home to be sold - financial information before court - capacity of family to earn money - discretionary nature of court's power concerning available remedies - house in negative equity - whether sale of house would result in any payment to creditor - feasibility of sale - young couple with young children.

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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