Bambrick v Cobley

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 25 February 2005
• Neutral Citation: [2005] IEHC 43
• Court: High Court
• Date: 25 February 2005

BAMBRICK v COBLEY

BETWEEN

MICHAEL BAMBRICK

PLAINTIFF

AND

JOHANNA COBLEY

DEFENDANT

[2005] IEHC 43

[No. 7164 P/2004]

THE HIGH COURT

INJUNCTIONS

Mareva

Interlocutory injunction - Material facts - Whether plaintiff made full and frank disclosure of all material facts - Consequences of non-disclosure of material facts - Whether real risk of assets being dissipated or removed from jurisdiction of court In re John Horgan Livestock Ltd [1995] 2 I.R. 411, Tate Access Floors Inc v Boswell [1990] 3 All ER 303, Production Association Minsk Tractor Works v Saenko (Unreported, High Court, McCracken J, 25/2/1998) and Lloyds Bowmaker Ltd v Britannia Arrow Holdings Ltd [1988] 3 All ER 178 followed - Interim injunction discharged and interlocutory injunction refused - (2004/7164P - Clarke J - 25/2/2005) [2005] IEHC 43 - Bambrick v Cobley - [2006]1 ILRM 81

O'MAHONY v HORGAN 1995 2 IR 411 1996 1 ILRM 161

THIRD CHANDRIS SHIPPING CORP v UNIMARINE SA 1979 QB 645 1979 2 AER 972

TATE ACCESS FLOORS INC v BOSWELL 1990 3 AER 303

PRODUCTION ASSOCIATION MINSK TRACTOR WORKS & BELARUS EQUIPMENT (IRL) LTD v SAENKO UNREP MCCRACKEN 25.2.1998 1998/36/13672

ATKIN v MORAN 1871 IR 6 EQ 79

BRINKS MATT LTD v ELCOM 1988 3 AER 188

LLOYDS BOWMAKER LTD v BRITANNIA ARROW HOLDINGS LTD 1988 3 AER 178

BENNETT ENTERPRISES INC & ORS v LIPTON & ORS 1999 2 IR 221 1999 1 ILRM 81

1 Mr. Justice Clarke delivered 25th February, 2005.

2 These proceedings arise out of a contract entered into between the defendant as vendor and the plaintiff as purchaser in respect of the sale of certain lands at Kilbline in the County of Kilkenny which contract was in writing and dated 11 ^th day of June, 2004. In circumstances which I will outline more fully later in the course of this judgment the contract has now been completed. However a dispute exists between the parties as to the attribution of fault in relation to the fact that the contract did not close in the time contemplated and in those circumstances the plaintiff continues to maintain a claim in respect of damages for loss which he alleges flows from a breach of contract on the part of the defendant which, he alleges, stems from her delay in so closing. In this application he seeks a Mareva type order freezing part of the proceeds of sale.

3 The plaintiff issued proceedings on 16 ^th May, 2004 in which he claimed specific performance of the above contract (which at that time had not been completed) and in the alternative damages in lieu thereof. For reasons set out in the respective affidavits of Jeremy Chugg (dated 25 ^th June, 2004) and Michael F. Cornwall (dated 6 ^th July, 2004) difficulty was encountered in effecting service of those proceedings. Those difficulties gave rise to an ex parte application on behalf of the plaintiff to this court on 5 ^th July, 2004 as a result of which McKechnie J. refused an application which sought to deem good the purported service of the plenary summons in the circumstances set out in Mr. Chugg & apos;s affidavit or in the alternative seeking substituted service. McKechnie J. observed that another attempt should be made to serve the proceedings directly. That attempt was made in the manner set out in Mr. Cornwall & apos;s affidavit.

4 Parallel with those events on 28 ^th May, 2004 the defendant & apos;s solicitors served a 28 day notice to complete on the plaintiff.

5 At all material times the plaintiff was represented by the firm of solicitors Peter G. Crean and Company of which he was a member. The purchaser was represented by Messrs. Thomas A. Walsh and Company in relation to the conveyancing matters but the said firm indicated that they did not have authority to accept service of any proceedings. Lengthy correspondence has been exhibited in the affidavits before me passing between the two firms of solicitors. Suffice it to say that insofar as it relates to the substantive issues which will ultimately have to be resolved in these proceedings it is accepted by both sides that there are fair issues to be tried as to whether the defendant was in breach of contract in relation to the delay in closing and as to whether, as a result of same if it be established, the plaintiff can be said to have suffered loss and damage. However insofar as it is relevant to this application it is important to note that as the conveyancing aspect of the matter neared completion the plaintiff & apos;s solicitors wrote to the defendant & apos;s solicitors on 2 ^nd August and having made general complaints about the conduct of the conveyancing transaction went on to state as follows:-

6 & ldquo;could you also please confirm that your client is agreeable to leave a sufficient sum of money on joint deposit between our respective firms pending the outcome of High Court proceedings in this matter. We await hearing from you by immediate return & rdquo;.

7 By reply dated the following day (August 3 ^rd) the defendant & apos;s solicitors stated as follows:-

8 & ldquo;Further to our telephone conversation this morning I note you confirmed that you would lodge the balance purchase monies into our Anglo Irish Bank account upon receipt of an undertaking from this office to retain the sum of & euro;50,000 until close of business on Thursday August 12 ^th. I confirm that I called you back before lunch, as you requested, to ask where I was to fax this undertaking to, and I left a detailed message on your voicemail which you say you did not receive & rdquo;.

9 There was also faxed on the same date an undertaking in the following terms:-

10 & ldquo;We M/S Thomas A. Walsh and Company solicitors for the vendor in the above matter, hereby undertake to retain a sum of & euro;50,000 from the nett sale proceeds of the above mentioned property, until close of business on August 12 ^th next unless otherwise instructed by the purchaser in the meantime.

11 This undertaking is furnished on the basis that the vendor has not authorised this office, to date, to put this money on joint deposit between the offices of the agents acting for the vendor and the purchaser herein.

12 We trust this is in order. & rdquo;

13 On the 4 ^th August a letter was written by the defendants solicitors to the plaintiffs solicitors concerning an ordinance survey map which is not material to the issues which I have to decide. On the 6 ^th August a letter was written by the plaintiffs solicitors to the defendants solicitors which in material part states as follows:-

14 & ldquo;Transfer of funds is authorised on the strict understanding that you will hold same in trust until at least close of business on the 12 ^th day of August 2004, or if there be no sitting of the High Court on that date or there be a sitting and it be adjourned, then and in those circumstances to hold the said funds until the next sitting of the High Court and in the case of adjournment thereof to the adjourned date & rdquo;.

15 This was in turn replied to on the 10 ^th August by solicitors for the defendant in the following terms:-

16 & ldquo;Further to yours of the 6 ^th inst. we write to confirm in relation to the second paragraph of your letter that we are not, nor have we undertaken to hold the balance of the sale proceeds on trust for you. We have agreed and have furnished an undertaking to you to hold the sum of & euro;50,000 only on trust as per our undertaking to you of August 3 ^rd 2004.

17 With regard to the specific date until which we will hold this sum on trust we are writing to reaffirm our initial undertaking to retain this sum on trust for you until close of business on August 12 ^th next, or in the alternative, until such time as agreement is reached between the parties as to whether this sum is to be placed on joint deposit between the two firms or alternatively, until such time as any order which is made in relation to this matter shall provide otherwise. & rdquo;

18 The following day (11 ^th August 2004) the plaintiff applied ex parte to the High Court for an order restraining the defendant from reducing her assets within the jurisdiction below & euro;100,000 and further seeking an order that the said amount be deducted from the proceeds of sale/purchase between the parties and placed on joint deposit between the respective firms of solicitors. That application was grounded upon the affidavit of the plaintiff. The application was granted by Kelly J. and included, inter alia, liberty to the defendant to apply to discharge the order on 24 hours notice to the plaintiff and to the Court. That interim order was specified as being, in the absence of an order in the meantime, to continue until the 11 ^th October 2004 when, it was contemplated, an application for an interlocutory order in the same terms would be moved.

19 It would appear that no copy of the aforementioned order was sent to the defendant prior to the 11 ^th October 2004 nor was the affidavit grounding the injunction application received by that date. It would appear that on the 11 ^th October Kelly J. indicated that he wished to hear from the solicitor dealing with the matter on behalf of the plaintiff on the following day (Tuesday 12 ^th October) and upon that day the plaintiff himself appeared as solicitor and indicated that owing to the fact that he had been on holiday and as a result of a family bereavement he had been unable to transmit to the defendant and her legal advisers the appropriate paperwork. This explanation was accepted by the Court. Subsequently the interlocutory injunction application was adjourned from time to time and ultimately came before me on the 21 ^st February.

20 In answer to the plaintiff & apos;s application for an interlocutory injunction) in the same terms as the interim order already made the defendant in substance relies upon two matters:-

21 1. Lack of candour:

22 It is said that...