Chadwicks Limited v Byrne Roofing Limited, [2005] IEHC 47 (2005)

Docket Number:2003 1078S
Judge:Clarke J.
 
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Neutral Citation No. [2005] IEHC 47THE HIGH COURTRECORD No. 2003/1078 SBETWEEN CHADWICKS LIMITEDPLAINTIFFAndP. BYRNE ROOFING LIMITEDDEFENDANTAND ALSOTHE HIGH COURT RECORD No. 2003/1079 SBETWEEN CHADWICKS LIMITEDPLAINTIFFAndPATRICK BYRNEDEFENDANTJUDGMENT of Mr. Justice Clarke delivered the 25th day of February, 2005In these proceedings the plaintiffs seek to recover 89,029.34 as againstP. Byrne Roofing Limited ("the defendant company") on foot of goods supplied and in respect of Mr. Byrne in the second proceedings on foot of a guarantee in respect of the indebtedness of the company.Both matters came before the court by way of motion for summary judgment. The issue which I have to determine is as to whether, and if so to what extent, the defendants have established grounds so as to permit them to avoid judgment at this stage and have the matter remitted for plenary hearing.While there is an assertion on the part of Mr. Byrne at para. 9 of an affidavit dated 20th October, 2003, sworn in the proceedings against him personally to the effect that he is advised that the guarantee upon which he is sued is invalid, that issue was not pursued at the hearing before me. However, the liability of Mr. Byrne on foot of the guarantee cannot exceed the liability of the company for goods supplied so that each of the points made by the company as to its defence to the claim against it are equably applicable to Mr. Byrne.The real issue is, therefore, as to whether the company has established a sufficient basis for defending the action. Finally it should be noted that a variety of affidavits were sworn in both sets of proceedings both on behalf of the plaintiffs and the respective defendants. It was agreed in the course of the hearing before me that I could have regard to any affidavits so sworn in either proceedings even if technically that the relevant affidavit appeared to have been sworn in the other proceedings.THE FACTSIt is common case that for the period between 1998 and the latter part of 2002 a course of business developed between the parties which was broadly along the lines deposed to by Pat Walsh, the group credit manager of the plaintiff company, as follows:-"Notwithstanding the sending of a specific invoice for a specific sum relating to the supply of an item or group of items the defendant company would ordinarily pay rolling amounts to the plaintiff in consideration for the supplies received. As such the defendant company would not discharge the specific invoices." This process would appear to have continued without any dispute on either side. The plaintiff from time to time furnished invoices to the defendant company who in turn paid them on the rolling basis above described.In early 2003, the defendant company was, on the basis of such invoices, apparently indebted to the plaintiffs in a sum which the plaintiffs contended amounted to 111,984.25. Correspondence thereafter ensued in the course of which the defendant company, through its solicitors, in a letter of 27th August, maintained three matters by way of defence as follows:-(1) It was contended that the plaintiff owed the defendant company a credit in respect of goods supplied by Tegral in the sum of 33,880.00.(2) It was contended that the invoices reflected overcharging in the sum of 5,952.40.(3) Finally it was contended that certain of the goods the subject matter of the invoices had not in fact been received by the defendant company though, at that stage, the amount attributable to such invoices was not specified.The Tegral issue was finally compromised which resulted in a reduction of the sum claimed from the initial amount of 111,984.25 to the sum now claimed of 89,029.34 representing a...

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