Bank of Ireland -v- Walsh, [2009] IEHC 220 (2009)

Docket Number:2009 728 S
Party Name:Bank of Ireland, Walsh
Judge:Finlay Geoghegan J.
 
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THE HIGH COURT

COMMERCIAL2009 728 S

BETWEEN

BANK OF IRELANDPLAINTIFFAND

MERVYN WALSHDEFENDANT

JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 8th day of May, 2009

1. The application to which this judgment relates is for summary judgment in the sum of 4 million and interest in favour of the plaintiff against the defendant.

2. The principles applicable to the determination of the plaintiff's application for summary judgment and the defendant's application for leave to defend are not in dispute. Counsel for both parties agree that they are those set out by McKechnie J. in Harrisrange Ltd. v. Duncan [2003] 4 I.R. 1. In that decision, having reviewed a number of prior decisions, McKechnie J. at p. 7, summarised those as follows: "(i) the power to grant summary judgment should be exercised with discernible caution;

(ii) in deciding upon this issue the court should look at the entirety of the situation and consider the particular facts of each individual case, there being several ways in which this may best be done;

(iii) in so doing, the court should assess not only the defendant's response, but also in the context of that response, the cogency of the evidence adduced on behalf of the plaintiff, being mindful at all times of the unavoidable limitations which are inherent on any conflicting affidavit evidence;

(iv) where truly there are no issues of simplicity only or issues easily determinable, then this procedure is suitable for use;

(v) where however, there are issues of fact which, in themselves, are material to success or failure, then their resolution is unsuitable for this procedure;

(vi) where there are issues of law, this summary process may be appropriate but only so if it is clear that fuller argument and greater thought is evidently not required for a better determination of such issues;

(vii) the test to be applied, as now formulated is whether the defendant has satisfied the court that he has a fair or reasonable probability of having a real or bona fide defence; or as it is sometimes put, 'is what the defendant says credible?', which latter phrase I would take as having as against the former an equivalence of both meaning and result;

(viii) this test is not the same as and should not be elevated into a threshold of a defendant having to prove that his defence will probably succeed or that success is not improbable, it being sufficient if there is an arguable defence;

(ix) leave to defend should be granted unless it is very clear that there is no defence;

(x) leave to defend should not be refused only because the court has reason to doubt the bona fides of the defendant or has reason to doubt whether he has a genuine cause of action;

(xi) leave should not be granted where the only relevant averment in the totality of the evidence, is a mere assertion of a given situation which is to form the basis of a defence and finally;

(xii) the overriding determinative factor, bearing in mind the constitutional basis of a person's right of access to justice either to assert or respond to litigation, is the achievement of a just result whether that be liberty to enter judgment or leave to defend, as the case may be."3. As appears from sub-paragraph (vii) above, the threshold is one of an arguable defence and is, in relative terms, a low threshold. However, in making that determination, the Court should have regard to whether what the defendant is saying is mere assertion and whether the proposed defence is credible in the sense explained by Hardiman J. in Aer Rianta c.p.t. v. Ryanair Ltd. [2001] 4 I.R. 607.

4. The defendant is a director of Largreen Ltd. ("Largreen"). On 14th September, 2006, he executed a guarantee in favour of the plaintiff of liabilities of Largreen, subject to a limit of 4 million and interest ("the Guarantee"). Whilst, in his first replying affidavit, the defendant raised an issue in relation to the amount of 4 million, at the hearing of the application for summary judgment it was not in dispute that the defendant had executed the Guarantee of liabilities of Largreen in an amount of 4 million and interest referred to therein. Further, his counsel confirmed that the plaintiff was not required to produce in Court the original Guarantee.

5. Largreen is a property owning company with, inter alia, property at Portlaoise, County Laois. Such property was being built on by connected companies. It is not in dispute that the plaintiff had made a number of facilities available to Largreen for which it held the Guarantee as security. Further, that on 19th December, 2008, Largreen was indebted to the plaintiff in the sum of 22,439,632.42 for which the plaintiff held the Guarantee from the defendant as security. Demands were made on the defendant for payment under the Guarantee by letters dated 19th December, 2008, and 23rd February, 2009.

6. On 12th December, 2008, the plaintiff appointed a receiver over Largreen.

7. These proceedings were commenced on 23rd February, 2009, and on 30th March, 2009, admitted to the Commercial List and the application for summary judgment fixed for hearing on 23rd April, 2009, with directions in relation to the delivery of any replying...

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