Bula Holdings and Others v Roche and Others

Court:Supreme Court
Judge:Denham J.
Judgment Date:03 Apr 2009
Jurisdiction:Ireland
Neutral Citation:[2009] IESC 36, [2009] IESC 35

[2009] IESC 35

THE SUPREME COURT

Denham J.

Kearns J.

McGovern J.

Between/

[Appeal No: 262 and No: 314 of 2005]
Bula Ltd (In Receivership) & Ors v Crowley & Ors
Bula Limited (In receivership), Bula Holdings, Richard Wood and Michael Wymes
Plaintiffs/Appellants

and

Laurence Crowley, KPMG (A Firm) Tara Mines Limited, Outokumpu Oy, Northern Bank Finance Corporation, Ulster Investment Bank Limited, Allied Irish Investment Bank Limited, Navan Mining Public Limited Company
Defendants/Respondents

RSC O.19 r28

RSC O.27 r1

COMPANIES ACT 1963 S316

BULA LTD & ORS v CROWLEY & TARA MINES LTD (NO 4) 2003 2 IR 430 2003/7/1464

EDENFELL HOLDINGS LTD, IN RE 1999 1 IR 443 1998/18/6734

HENDERSON v HENDERSON 1843 3 HARE 100

A (A) v MEDICAL COUNCIL & AG 2003 4 IR 302 2004 1 ILRM 372 2003/1/49

SALTHILL PROPERTIES LTD, IN RE UNREP SUPREME 29.5.2006 2006/52/10997 2006 IESC 35

BULA LTD & ORS v TARA MINES LTD & ORS UNREP LYNCH 6.2.1997 1997/1/219

BULA LTD v TARA MINES LTD & ORS (NO 2) 1987 IR 95 1988 ILRM 157 1987/1/154

ROCHE v MIN FOR INDUSTRY 1978 IR 149

BULA LTD, IN RE 2002 2 ILRM 513 2002/4/879

BULA LTD v TARA MINES LTD (NO 6) 2000 4 IR 412 2000/3/925

BULA LTD & ORS v CROWLEY & ORS UNREP BARR 29.4.1997 1998/12/4046

BULA LTD & ORS v CROWLEY & ORS 2003 1 ILRM 55 2002/4/857

BULA LTD & ORS v CROWLEY & ORS (NO 3) 2003 1 IR 396 2003 2 ILRM 401 2003/7/1420

STATUTE OF LIMITATIONS 1957

CONSTITUTION ART 34.4.6

WOODHOUSE v CONSIGNIA PLC 2002 1 WLR 2558 2002 2 AER 737

PRACTICE AND PROCEDURE

Striking out procedures

Abuse of process - Res judicata - Right of access to courts - Isaac Wunder order - Henderson v Henderson (1843) 3 Hare 100 followed - Rules of the Superior Courts 1986 (SI 15/1986), Os 19 & 27 - Plaintiffs' appeal dismissed (262 & 314/2005 - SC - 3/4/2009) [2009] IESC 35

Bula Ltd v Crowley

262/2005 & 314/2005 - Denham [nem diss] Kearns McGovern - Supreme - 3/4/2009 - 2009 IESC 35 2009 6 1340

Facts: The plaintiffs sought an extension of time for the service of a notice of appeal from a decision of the High Court, dismissing the proceedings as they had no reasonable prospect of success and were bound to fail and that they represented an abuse of process. The plaintiffs asserted a multiplicity of grounds to set aside various judgments and orders of the High Court.

Held by the Supreme Court per Kearns J. (Denham & McGovern JJ concurring), that no arguable case had been made out whereby the Court could be satisfied that an appeal was likely to succeed. The trial judge had been satisfied that the proceedings were an abuse of process and brought for the purposes of stalling or delaying an order for the payment of costs. No arguable ground of appeal existed and the Court would decline to extend the time for service of the Notice of Appeal and would refuse the relief sought in the Notice of Motion.

Reporter: E.F.

1

Judgment delivered the 3rd day of April, 2009, by Denham J.

2

Judgment delivered by Denham J. [nem diss]

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1. This is an appeal by Bula Ltd. (in receivership), "Bula"; Bula Holdings, "Holdings"; Richard Wood, "Mr. Wood"; and Michael Wymes, "Mr. Wymes"; the plaintiffs/appellants, who are referred to collectively as "the appellants".

4

2. It is an appeal from the judgment of the High Court (Murphy J.) delivered on the 10 th day of June, 2005.

5

3. The High Court had before it notices of motion: the notice of motion of the fifth, sixth and seventh named defendants, referred to as "the banks"; the notice of motion of Laurence Crowley the first named defendant "the receiver"; the notice of motion of Tara Mines Limited, the third named defendant, and Outokumpu Oy, the fourth named defendant. The High Court noted the attendance of the solicitor for the receiver of Navan Mining Public Company Limited (in receivership), who indicated to the Court that due to lack of funds in the receivership the receiver was not taking any part in these proceedings save to indicate his support to the notices of motion.

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4. The notice of motion, brought by the banks, sought:

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(a) An order dismissing the proceedings as constituting an abuse of the process of the court.

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(b) Further, or alternatively, an order pursuant to Order 19, rule 28 of the Rules of the Superior Courts dismissing the proceedings on the grounds that they are frivolous and vexatious and/or disclose no reasonable cause of action against the banks.

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(c) An order restraining the appellants and each of them from instituting any further proceedings against the banks without the leave of the court.

10

5. The notice of motion brought by the receiver was in similar terms to that of the banks.

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6. The notice of motion of the third and fourth named defendants sought an order dismissing the plaintiffs' action against the defendants pursuant to Order 27, rule 1 of the Rules of the Superior Courts, further or in the alternative, an order pursuant to the inherent jurisdiction of the Court dismissing the appellants' action on the grounds:

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(a) that the appellants' action constitutes a manifest abuse of the process of the Court,

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(b) that the action discloses no reasonable cause of action against the second and third defendants or either of them,

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(c) that the action is frivolous and vexatious, and that

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(d) the appellants' claims against the defendant are res judicata.

7. Proceedings
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These notices of motion were brought in response to proceedings instituted by the appellants, the plenary summons issued in August, 2003, referred to as "these proceedings". In these proceedings, in the general indorsement of claim on the plenary summons, the appellants claimed:

As against all the defendants:-
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1. Damages for negligence

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2. Damages for unlawful interference with the economic interests of the appellants and each of them.

As against the receiver:
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3. Damages for breach of duty.

20

4. Damages for misrepresentation and/or negligent misstatements.

21

5. Damages for breach of contract.

22

6. A declaration that the receiver has purported to sell the property known as the Bula Mine at Nevinstown, Navan, County Meath in breach of duty.

23

7. A declaration that the receiver was and is prohibited from acting as receiver and manager.

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8. An injunction restraining the receiver from dealing with the proceeds of the purported sale, pending the determination of these proceedings.

As against the second defendant:-
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9. Damages for breach of contract.

26

10. Damages for misrepresentation and/or negligent misstatements.

As against the receiver and the third defendant:-
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11. An Order setting aside the contract dated the 9 th of May 2001 made between the receiver and Tara Mines Ltd.

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12. An Order setting aside any conveyance between the receiver and Tara Mines Ltd pursuant to any purported completion of the contract dated 9 th May 2001 between the receiver and Tara Mines Ltd.

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13. An Order setting aside any conveyance to any purported completion of the contract.

As against Tara Mines Ltd:-
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14. A declaration that Tara Mines Ltd has no good title to the property.

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15. An injunction restraining Tara Mines Ltd. from exercising and/or asserting any rights as purchaser under the purported conveyance pending the determination of these proceedings.

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16. An injunction directing that Tara Mines Ltd. refrain from entering onto, into or under, or extracting minerals from the property.

As against the fourth, fifth and sixth defendants:-
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17. Damages for breach of duty and negligence.

As against the first, second, third, fourth, fifth, sixth, seventh and eighth defendants:-
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18. Damages against the first, second, third, fourth, fifth, sixth, seventh and eighth defendants for unlawful interference with and obstruction of the course of justice.

As against the eighth defendant:-
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19. A declaration that the eighth defendant had an interest in the security, pursuant to which the receiver purported to sell the property to the Tara Mines Ltd.

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20. A declaration that the eighth defendant was an intended beneficiary pursuant to the contract between the receiver and Tara Mines Ltd. dated 9 th May 2001.

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21. An order directing that all necessary accounts and enquiries be taken.

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22. Such further or other relief as to this Honourable Court shall seem fit.

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23. Costs.

7. High Court Order
40

The High Court ordered that the proceedings be dismissed as constituting an abuse of the process of the Court. This order was made pursuant to the inherent jurisdiction of the Court. Also, it was ordered that the appellants and each of them be restrained from instituting any further proceedings against the receiver, Tara Mines Ltd., Outokumpu Oy, and the banks, without the prior leave of the High Court.

8. Appeal
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The appellants have appealed against the order and judgment of the High Court, filing seventy grounds of appeal.

9. Submissions on behalf of the appellants
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On the case opening in this Court, counsel for the appellants, Mr. Frank Callahan, S.C., limited the grounds of appeal. He submitted that he did not advance arguments to set aside the sale of the lands, or to set aside the judgment of this Court on the s.316 application. Counsel submitted that the essence of the appellants' case was that there was in the judgment of this Court in the s.316 application no determination on the merits of any of the matters that are the gravamen of these proceedings. Further, that the merits could not have been determined under the s.316 application. He submitted that the only proceedings which could ground a finding that the case was an abuse of process was the s.316 application and judgment of this Court. Therefore, he submitted that, the primary legal issue on the appeal was whether the judgment on the s.316 application is capable of giving rise to a res judicata in these proceedings given the...

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