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High Court, in well charging proceedings concerning registered lands linked to a debt sought to be recovered, refuses defendant's application to remit proceedings to Circuit Court, argued on the basis that the market value of the lands comes within that court's jurisdictional threshold, on the grounds that the proceedings could have been brought by the plaintiff in that Court on this very basis; however due to the nature of the defence being made, which has the potential to require determination of significant legal issues which may transcend the facts of the case concerning the practice of creating equitable mortgages by deposit of land certificates, the court exercises its discretion to refuse to remit under the circumstances and leaves open the possibility for a differential costs order application at a later point in the proceedings.
Well charging proceedings - special summons - proceedings seeking to enforce a lien in respect of a debt - defendant's motion to remit proceedings to Circuit Court - market value of lands - whether Circuit Court's jurisdiction is delimited by monetary value of debt underlying the proceedings - whether High Court should nevertheless exercise its discretion to refuse order of remittal - whether defendant's concerns can be met by way of a differential costs order - legislative framework concerning Circuit Court's jurisdiction and High Court's discretion to remit - legal test - it was reasonable that such action should have been commenced in High Court - whether a good defence - whether consent forthcoming - location of witnesses - whether an unusually important point of law suitable for High Court - registered lands - lien registered on folio prior to loan facilities being entered into - creation of equitable mortgage by way of deposit of land certificate - effect of amending legislation - protection of interests for holders of liens for a period of three years - whether plaintiff's security now valid - proceedings have potential to require determination of legal issues of significance - Circuit Court's jurisdiction not subject to quantitative limitation by reference to underlying value of debt - proceedings could have been brought before Circuit Court - remittal refused due to nature of defence - application refused
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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