The claimant had obtained a charging order to secure a judgment debt, but took no steps to enforce it for more than twelve years. The chargee denied that it could any longer be enforced, and also that the order carried interest when interest had not been mentioned.
Held: A charging order impliedly includes a charge to secure the costs and also interest for the six years up to the start of the action. Carnwath J said: ‘So far as concerns the costs of enforcing the security, it is well established that:-
‘A mortgagee is allowed to re-imburse himself out of the mortgaged property for all costs charges and expenses reasonably and properly incurred in enforcing or preserving his security…’ although that principle is based on an implied term in the mortgage contract (see Gomba Holdings v Minories Finance 1993 CH 171 at p 184) the same principle is in my view applicable (by virtue of section 3(4) of the 1979 Act) to a Charging Order.’
Judges:
Carnwath J
Citations:
Independent 23-Nov-1994, Times 08-Nov-1994
Statutes:
Jurisdiction:
England and Wales
Citing:
See Also – Ezekiel v Orakpo CA 1977
A lease had been forfeited for non payment of rent. The lessor then took proceedings for possession. The tenant claimed that the action was invalid because a receiving order had been made against him in the meantime.
Held: The Court rejected . .
Cited by:
Appeal from – Ezekiel v Orakpo CA 16-Sep-1996
A charging order was made in 1982 to secure pounds 20,000 under a judgment given in 1979. The judgment creditor did not seek to enforce the charging order until almost 12 years had elapsed since the making of the charging order. An order for . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 06 August 2022; Ref: scu.80433