ABBEY INTL. FINANCE Ltd v POINT IRELAND HELICOPTERS Ltd

• Jurisdiction: Ireland
• Judgment Date: 27 July 2012
• Date: 27 July 2012
• Docket Number: [2012 No. 5845 P]
• Court: High Court

[2012] IEHC 374,

High Court

[2012 No. 5845 P]

Abbey Intl. Finance Ltd. v. Point Ireland Helicopters Ltd.

Abbey International Finance Limited

Plaintiff

and

Point Ireland Helicopters Limited and Elitaliana S.p.A.

Defendants

Cases mentioned in this report:-

Aer Rianta c.p.t. v. Ryanair Ltd. [2001] 4 I.R. 607; [2002] 1 I.L.R.M. 381.

Barry v. Buckley [1981] I.R. 306.

Dolan v. Neligan [1967] I.R. 247; (1965) 103 I.L.T.R. 46.

Dome Telecom Ltd. v. Eircom Ltd. [2007] IESC 59, [2008] 2 I.R. 726.

First National Commercial Bank plc v. Anglin [1996] 1 I.R. 75.

IBB Internet Services Ltd. v. Motorola Ltd. [2011] IEHC 253, [2011] 2 I.L.R.M. 321.

Kalix Fund Ltd. v. HSBC Institutional Trust Services (Ire) Ltd. [2009] IEHC 457, [2010] 2 I.R. 581.

McCann v. Desmond [2010] IEHC 164, [2010] 4 I.R. 554.

P.J. Carroll & Co. Ltd. v. Minister for Health and Children [2005] IESC 26, [2005] 1 I.R. 294; [2005] 2 I.L.R.M. 481.

Sun Fat Chan v. Osseous Ltd. [1992] 1 I.R. 425.

Sweetman v. An Bord Pleanála [2009] IEHC 174, (Unreported, High Court, Kelly J., 3rd April, 2009).

Courts - Practice and procedure - Plenary proceedings - Unliquidated sums - Summary judgment - Jurisdiction - Inherent jurisdiction of court - Whether court having jurisdiction to grant summary judgment in plenary proceedings for unliquidated sums - Commercial Court - Whether wide powers of Commercial Court permitting granting of summary judgment in plenary proceedings for unliquidated sums - Test to be applied - Whether test of probability of real or bona fide defence applicable - Rules of the Superior Courts 1986 (S.I. No. 15), O. 63A.

Motion on notice

The facts have been summarised in the headnote and are more fully set out in the judgment of the Kelly J., infra.

The plenary summons claiming liquidated damages and other substantive reliefs was issued on the 14th June, 2012, and the proceedings were admitted into the Commercial List of the High Court on the 29th June, 2012.

By notice of motion dated the 20th June, 2012, the plaintiff sought, inter alia, summary judgment. The motion was heard on the 26th and 27th July, 2012.

The plaintiff commenced plenary proceedings seeking, inter alia, liquidated and unliquidated sums and substantive reliefs in respect of aircraft leased to the defendant. The proceedings were admitted to the commercial list and the plaintiff sought summary judgment, contending that there was no defence to its claim.

Held by the High Court (Kelly J.), in granting summary judgment for part of the claim and granting leave to defend for the balance, 1, that the court had inherent jurisdiction, in plenary proceedings seeking unliquidated sums, to grant relief on a summary basis to the plaintiff where the defendant had no real or bona fide defence, notwithstanding the absence of such a provision to do so in the Rules of the Superior Courts 1986.

Sun Fat Chan v. Osseous Ltd. [1992] 1 I.R. 425applied. Dolan v. Neligan [1967] I.R. 247,Barry v. Buckley [1981] I.R. 306 and Dome Telecom Ltd. v. Eircom Ltd. [2007] IESC 59, [2008] 2 I.R. 726 and considered.

2. That the wide powers conferred upon the Commercial Court by O. 63A, r. 5 of the Rules of the Superior Courts 1986, permitted the plaintiff in plenary proceedings seeking unliquidated sums being heard in the Commercial Court to seek summary disposal of same where the defendant was unable to demonstrate a real or bona fidedefence, and the grant of such relief summarily promoted the objectives for which the Commercial Court was established.

• P.J. Carroll & Co. Ltd. v. Minister for Health and Children [2005] IESC 26, [2005] 1 I.R. 294, Sweetman v. An Bord Pleanála [2009] IEHC 174, (Unreported, High Court, Kelly J., 3rd April, 2009), Kalix Fund Ltd. v. HSBC Institutional Trust Services (Ire) Ltd. [2009] IEHC 457,[2010] 2 I.R. 581, McCann v. Desmond [2010] IEHC 164, [2010] 4 I.R. 554 and IBB Internet Services Ltd. v. Motorola Ltd. [2011] IEHC 253, [2011] 2 I.L.R.M. 321considered.

3. That the test applicable to the grant of relief on a summary basis in plenary proceedings seeking unliquidated sums was the same test applicable to the grant of summary judgment for liquidated sums, namely whether there was a fair or reasonable probability of the defendant having a real or bona fide defence.

First National Commercial Bank plc v. Anglin [1996] 1 I.R. 75 and Aer Rianta c.p.t. v. Ryanair Ltd.[2001] 4 I.R. 607 applied.

Ex tempore

Kelly J. 27th July, 2012

Foreword

[1] This is a note of a judgment which I delivered ex tempore. As the judgment dealt with a number of important procedural issues, I indicated to the parties that I would reproduce that part of it in the form of a written judgment. This I now do.

Background

[2] The plaintiff is a limited company registered in Ireland. It is engaged in the leasing of aircraft. The profits derived from that activity are used by it to support various charities.

[3] The first defendant is an Irish company and is described as a special purpose vehicle which was established in order to effect the leasing transactions, the subject of this litigation. The second defendant is an Italian company and is a member of the Point Aircraft group of companies.

[4] This litigation concerns three aircraft and a medical kit. All three aircraft are helicopters. Lease agreements were entered into in respect of them between the plaintiff and the first defendant on the 25th August, 2008, the 25th March, 2009 and the 29th September, 2009. The medical kit lease is dated the 21st October, 2008. There were then subleases entered into as between the defendants in respect of the helicopters and the medical equipment. Two of the helicopters are, at present, in...