Irish Law Reform Commission Papers and Reports

another, in other common law jurisdictions. It is instructive to

consider briefly the position in some of those other jurisdictions.

A England and Wales

judgment creditor obtaining a decree from the High Court or County

Court to apply to court for a charging order for the purpose of

enforcing judgment. The court has discretion as to whether or not to

make a charging order. If the order is made, it imposes on specified

property of the judgment debtor a charge for securing the payment of

any money due under the judgment. The charge covers any interest

of the judgment debtor under a trust, land held on bare trust for the

judgment debtor, and land held by two or more judgment debtors who

together are entitled to the whole unencumbered beneficial interest

under a trust.

enforceable "in the same manner as an equitable charge created by the

a mortgage against the jointly owned interest of the judgment debtor.

In such circumstances only a caution may be registered in the case of

registered land. With regard to unregistered land, no registration

against jointly owned interests is possible. Accordingly, a judgment

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creditor in such circumstances will lose priority to a later mortgagee

discretion as to whether or not to make a charging order.

Furthermore, it has the discretion as to whether an existing order

should be varied or rescinded, and as to whether an order for

immediate sale should be made. The court must consider all the

circumstances of the case, the personal circumstances of the debtor,

and whether any other creditor would be unduly prejudiced by the

making of the order. Where the charging order is over the family

charging order is governed in Northern Ireland by the Judgments

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the estate of registered land of which the judgment debtor is not the

registered owner may not be made: instead a caution may be

registered against the judgment debtor's interest.

charging order has the same effect on the land as a charge created by

the debtor in favour of the creditor. The exceptions are as follows:

vacant possession of premises, and remove goods to a place of safety.

However, where the premises are used as a dwelling, it must give not

less than seven days notice to the local Health and Social Services

Board.

C Canada – British Columbia

land in British Columbia is contained in sections 33 to 63 of the

name of the debtor was entered in an index known as the register of

judgments. This register was referable to the name of the defendant.

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It was not referable to the folio numbers of land held by the

defendant. Notation was also made on any certificate of title held by

the defendant. Registration was effective for two years and was

renewable.

type of system. First, the judgment creditor need not find out if the

judgment debtor actually owns an interest in land. The judgment

creditor could simply register the judgment and if the judgment

debtor happens to own land the registration would catch that land.

Secondly, such a system was capable of affecting not only interests in

land as at the date of registration, but also interest in land acquired by

the judgment debtor after registration.

situation under Irish law where the judgment creditor must identify

the specific property in which the judgment debtor has an interest

before registration can occur. Under the scheme in British Columbia

the judgment creditor could register against the judgment debtor on

the speculative possibility that the judgment debtor owned an interest

in land.

registration would not affect interests in land acquired by the

judgment debtor after registration.

pertained in England and Wales until amendment was effected

requiring the judgment creditor to identify the lands which were to be

affected by the charge.

judgment debtor in the district covered by the relevant Land Registry

office. The procedure to enforce the charge is initiated by the

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judgment creditor applying to the Supreme Court calling on the

debtor and any other person having the legal estate in the land to

show cause why the land should not be sold to realise the amount of

the judgment debt.

execute a conveyance in the prescribed form. Registration of that

conveyance to a third party vests the judgment debtor's interest in the

purchaser free of the judgment proceeded on and of any subsequent

charges. A purchaser is not bound to inquire whether the

requirements of the Act have been met and the purchaser's rights are

not affected by any breach, impropriety or irregularity in the sale to

which he or she is not a party, even if the purchaser has notice

thereof.

parties – such as a joint tenant of the judgment debtor. Under British

Columbia law registration of judgment against the judgment debtor's

interest in land does not effect a severance of the joint tenancy.

Accordingly, if the judgment debtor predeceases the other joint

tenant, the judgment mortgage will be defeated. This aspect of

British Columbia law received criticism from eminent sources –

including a former Chief Justice of the British Columbia Supreme

the judgment should continue not to effect a severance of the joint

tenancy. Instead, the registration should attach to the interest of the

surviving joint tenant. To temper the potential injustice to the

surviving joint tenant, the BCLRC proposed a complex form of

statutory 'marshalling' so as to limit the judgment creditor's claim.

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that a judgment creditor who registered judgment should have

standing to bring proceedings for partition and sale of the property.

Furthermore, this should be done in the context of execution

proceedings under the Execution Act rather than under separate

partition proceedings.

to register execution against land before judgment is obtained. The

BCLRC was in favour of such a proposal: however this 'useful

innovation' should be subject to certain safeguards:

(a) the application to register should be made to court and on

notice to the defendant;

(b) the order should not be granted unless the court is satisfied

that the defendant is 'insecure' in the sense that judgment

might not otherwise be satisfied if the order were not to be

made;

(c) a balance of convenience test should be applied;

(d) the order should only be granted to a plaintiff who has

verified under oath that there is no reasonable defence to the

claim and that the plaintiff's action has a reasonable chance

of success;

(e) if the defendant is successful he or she should be granted

any damages occasioned by the pre-judgment charge.

discussed in Chapter 4 below.

D New Zealand

under the High Court rules dealing with charging orders and writs for

sale. Under these provisions a judgment creditor can obtain a

charging order the effect of which is to freeze the dealings with the

land. The judgment creditor loses any security if the judgment debtor

becomes bankrupt while the charging order is in place. Sale is

effected by writ of sale.

plaintiff may only obtain a charging order before judgment upon

proof that the defendant is making away with his or her property, or is

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absent from or about to quit the jurisdiction, with intent to defeat the

interests of his or her creditors or the plaintiff.

issued without leave, at the request of the judgment creditor. Under

rule 570 any person claiming to be prejudicially affected by a

charging order may apply to court to have the order varied or

rescinded, or to have the registration thereof cancelled or modified.

Any person appearing to have a charge, lien or other claim on the

land, may be summoned to appear, and is entitled to be heard in any

application concerning the land.

first instance. The charging order is then registered against the

certificate of title to the land. The charging order must either:

(a) contain a description of the land affected sufficient to

identify it; or

(b) refer to a certificate of title or other instrument containing

such a description; or

(c) contain a plan showing its extent, boundaries and relative

position (unless the land is the whole of the land comprised

in a certificate or certificates of title, or is shown separately

on a plan deposited under the transfer of registered land

legislation – the Land Transfer Act 1952).

is not registered under the Land Transfer Act 1952, it must be

registered in the appropriate registry of deeds. A charging order in

respect of such land must contain:

(a) a description of the land affected sufficient to identify the

land; and

(b) a plan of the land showing its extent, boundaries and relative

position.

of the land or any part thereof under a writ of sale has any effect

against a purchaser for valuable consideration, notwithstanding that

the writ of sale may have actually been delivered for execution at the

time of purchase, and that the purchaser may have had actual or

constructive notice of the delivery of the writ of sale for execution.

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or assignment consequent on a writ of sale of the land is registered

within two years after the date of the charging order, the charging

order ceases to bind the land and is deemed to be discharged.

However, the court has the power to extend the period during which

the charging order shall bind the land.