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No ‘special circumstances’ warranting discharge or variance of Examiner’s certificate
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High Court refuses application to vary or discharge a certificate of the Examiner of the Hight Court, granted on foot of an enquiry as to encumbrances which did not admit the claimant's claim, on the grounds that the claimant failed to submit its formal proofs to the examiner but instead relied on an assertion as to its security, and therefore no existing 'special circumstances' have been established upon which the court would agree to vary or discharge the order.
Application to vary or discharge certificate of examiner issued in proceedings - Order 55 RSC - plaintiff obtained judgment and registered a judgment mortgage against defendant's interest in folio - well charging order and order for sale made by court - court directed examiner to conduct enquiry as to encumbrances - certificate stating claim not admitted - claimant argues no circumstances in which its mortgage granted and registered can cede priority to plaintiff's judgment mortgage registered later in time - communications between claimant and plaintiff - proposed agreement on costs in proportion to amount parties could expect out of proceeds of sale - registration of mortgage does not relieve claimant from its obligation to prove its debt and security before examiner - distribution of sale proceeds would be governed by adjudication on claims and encumbrances - later judgment mortgage cedes priority to a prior charge - no special circumstances exist to vary or discharge order.
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