The bank had obtained a judgement against the defendant, and took a charging order. Nothing happened for more than twelve years, and the defendant now argued that the order and debt was discharged.
Held: The enforcement of the charging order by normal means is not barred by section 20(1), and unlike the position under a legal mortgage, the creditor’s rights are not barred after 12 years because the holder of a charging order does not have a right to possession such that time can run against it under section 15, and extinction of title cannot therefore occur under section 17. There was no need to distinguish between legal and equitable mortgages and Ezekiel v Orakpo was binding. The defendant’s argument failed.
[2008] EWCA Civ 1156, [2009] 2 All ER (Comm) 164, [2009] BPIR 200, [2009] CP Rep 7, [2008] 3 EGLR 7, [2008] 43 EG 195, [2008] 50 EG 74, [2009] 1 P and CR 16
Bailii
Limitation Act 1980 20(1)20(5) 24, Charging Orders Act 1979 1(1)
England and Wales
Citing:
Applied – 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 . .
Cited – National Westminster Bank Plc v Ashe (Trustee In Bankruptcy of Djabar Babai) CA 8-Feb-2008
The mortgagees had made no payments under the charge for more than twelve years, and had remained in possession throughout. They argued that the bank were prevented from now seeking to enforce the charge. The bank argued that the possession had not . .
Cited – Edmunds v Waugh 1866
. .
Cited – Holmes v Cowcher ChD 1970
The court accepted the proposition put forward by counsel for the mortgagee that on an application by the mortgagor to redeem the mortgage, all the arrears of interest (amounting to almost 10 years) had to be paid as a condition of redemption, not . .
Cited – Lowsley and Another v Forbes (Trading As I E Design Services) HL 29-Jul-1998
The plaintiffs, with the leave of the court, had obtained garnishee and charging orders nisi against the debtor 11 and a half years after they had obtained a consent judgment.
Held: An application by the judgment debtor to set aside the orders . .
Cited – Hughes v Kelly 1843
(Ireland) . .
Cited – Poole Corporation v Moody CA 1945
In relation to a power of sale, the subsection was treated by the Court solely as a provision which excluded the operation of section 2 in claims for equitable relief, without any mention of the possibility of it applying the section by analogy. . .
Cited – Gotham v Doodes CA 25-Jul-2006
The former bankrupt resisted sale of his property by the trustee, saying that enforcement was barred by limitation. He and his wife bought the property in early 1988, and he was made bankrupt in October 1988. He was dischaged from bankruptcy in . .
Cited – Desnousse v London Borough of Newham and others CA 17-May-2006
The occupier had been granted a temporary licence by the authority under the homelessness provisions whilst it made its assessment. The assessment concluded that she had become homeless intentionally, and therefore terminated the licence and set out . .
Cited – Croydon Unique Ltd v Wright and Crombie, and Crombie Intervenors CA 29-Jul-1999
The beneficiary of a charging order had standing to intervene in proceedings leading to the forfeiture of a lease even several years after the lease had been forfeit. It was an interest derived from the lessee’s interest and a proper basis. The . .
Lists of cited by and citing cases may be incomplete.
Limitation, Land
Updated: 25 December 2021; Ref: scu.277146