ACC Loan Management Ltd v Kelly

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Eagar
• Judgment Date: 10 Jul 2017
• Neutral Citation: [2017] IEHC 454
• Docket Number: [2013 No. 4073 S.]

[2017] IEHC 454

THE HIGH COURT

Eagar J.

[2013 No. 4073 S.]

BETWEEN

ACC LOAN MANAGEMENT LIMITED

PLAINTIFF

AND

OLIVER KELLY

AND

MARGARET KELLY

DEFENDANTS

Banking & Finance Practice & Procedures – O.37, r.1 of the Rules of Superior Courts – Summary Judgement – Bona fide defence – Non-payment of loan

Facts: The plaintiff had filed a notice of motion for summary judgment pursuant to o.37, r.1 of the Rules of the Superior Courts against the defendants for the recovery of loan amount due from the defendants. The key issue that arose was whether a valid defence had been raised by the defendants. The plaintiff contended that the defendants had refused or neglected to pay the loan amount despite the letter of demand being sent by the plaintiff seeking repayment. The defendants contended that the plaintiff had given inaccurate description of the properties. The defendants contended that the plaintiff had committed fraud by colluding with its solicitors and was responsible for the disappearance of a huge amount invested by the defendants in the plaintiff/bank.

Mr. Justice Eagar granted the summary judgement to the plaintiff. The Court held that no valid defence had been advanced by the defendants. The Court took account of the affidavits submitted by both the parties and found that the defendants had failed to make payment of the loan amount despite agreeing to the terms of the loan settlement.

JUDGMENT of Mr. Justice Eagar delivered on the 10th day of July, 2017

1 This Court gave judgment on 15th May, 2017, in relation to an application by way of notice of motion for discovery by the defendants dated 3rd November, 2014.

2 The question now before the Court is whether or not a defence has been raised by the defendants, Oliver Kelly and Margaret Kelly. The Court notes the summary summons issued on 5th December, 2013, seeking judgment in the sum of €671,097.14, being the sum demanded as owing by the defendants as of 23rd October, 2013.

3 The Court also notes that the plaintiffs are not seeking interest arising from this matter.

4 An appearance was entered by the defendants and by way of notice of motion dated 1st April, 2014, an application was made for an order pursuant to O. 37, r. 1, granting the plaintiff to enter final judgment against the defendants in the sum of €671,097.14.

5 The affidavit of Edmund Pierce was dated 3rd March, 2014, and he refers to the two loan facilities.

6 The first loan facility is the subject of account 10037928 and on or about 2nd August, 2006, pursuant to a loan agreement, the plaintiff provided a loan facility to the defendants of up to €300,000 and the amount required to redeem the loan as of 27th February, 2014, was €150,788.47.

7 By deed of appointment dated 21st October, 2010, Simon Coyle of Mazars (the receiver) was appointed by the plaintiff as receiver over No. 3 St. Laurence's Park, Wicklow Town and No. 9 Glenside Road, Wicklow Town, pursuant to a mortgage dated 22nd March, 2007 and a mortgage dated 15th November, 2007, made between the defendants and the plaintiff.

8 ...