Debtor's Summons, Re; Ryley v Taaffe

• Jurisdiction: Ireland
• Judgment Date: 21 December 1932
• Date: 21 December 1932
• Court: Supreme Court (Irish Free State)

Ryley v. Taaffe

IN THE MATTER OF A DEBTOR'S SUMMONS; BEATRICE RYLEY

and

EDITH MARY TAAFFE (1)

Supreme Court.

Debtor's summons - Prior appointment of equitable receiver - Affidavit grounding summons not setting out receiver order - Whether affidavit irregular - Whether receiver order a "security" - Grant of second summons pending appeal from dismissal of first summons - Non-disclosure of pending appeal - Effect of non-disclosure - Competency of appeal - Bankruptcy (Ireland) Amendment Act, 1872 (35 & 36 Vict. c. 58), sect. 30 - Rules of the Supreme Court (Ir.), 1905, Or. LXXXVIII, rr. 1, 12; App. Y, Form 4.

A debtor's summons was dismissed on the ground that the affidavit leading to its issue was irregular in omitting to set out the fact that, previously to the issue of the summons, a receiver by way of equitable execution had been appointed on behalf of the creditor over the debtor's property. A second debtor's summons was applied for and granted in respect of a sum which included the debt, the subject of the first summons. The affidavit leading to the second summons set out the receiver order. The second summons was granted on the case being made that the first summons was dismissed for irregularity in procedure. It was not disclosed that an appeal from that dismissal was in contemplation. Subsequent to the issue of the second summons, the creditor appealed from the dismissal of the first summons.

Held, by the Supreme Court, that the appeal was not competent, as, in applying for the second debtor's summons, the creditor had represented that the first summons was dead, and accordingly the appeal should be dismissed.

Per FitzGibbon J.: The receiver order was not a "security" within the definition of Or. LXXXVIII, r. 1, Rules of the Supreme Court (Ir.), 1905.

Application, on behalf of Beatrice Ryley, by way of appeal from the whole of the order of Johnston J., dated 31st July, 1931, dismissing the debtor's summons, for an order that the said order should be reversed and set aside.

The facts of the case have been summarised in the headnote and appear sufficiently from the judgment of Kennedy C.J.

Cur. adv. vult.

Kennedy C.J. :—

This is an appeal from an order made by Johnston J. on the 31st of July, 1931, dismissing a debtor's summons by Beatrice Ryley against Edith Mary Taaffe on the ground that the affidavit of Mr. E. E. Merrick, solicitor, sworn on the 26th of June, 1931, grounding the debtor's summons, was irregular. The irregularity, because of which the learned Judge dismissed the debtor's summons, was the omission to state that, on the previous day, the 25th June, 1931, an order of the High Court had been made on the application of Beatrice Ryley appointing E. E. Merrick receiver by way of equitable execution over the interest of Edith Mary Taaffe in the estate of J. F. H. Taaffe, deceased, in respect of the debt mentioned in the debtor summons, viz., the certified amount of the taxed costs awarded to Beatrice Ryley as the successful party respondent to an appeal by Edith Mary Taaffe in a probate action of Taaffe v. Merrick and Others. Johnston J. held that such omission was a breach of the rule requiringuberrima fides on the part of persons making application to the Court ex parte. He indicated that it might also be, but did not decide that it was, a failure to comply with the rule of the Court prescribing the form of affidavit to ground a debtor's summons, which contains a paragraph for an averment that the "creditor holds no security or bills, or notes for the said debt save as hereinbefore stated."(Form No. 4 in App. Y under Rule 12 of Order LXXXVIII of the Rules of the Supreme Court, 1905.)

The question originally argued upon the appeal was the question whether the receivership order was a "security"within the meaning of the rule and prescribed form, particularly having regard to the definition of "security"in Rule 1 of the same Order of the Rules of the Supreme Court, viz.: "'Security' shall mean a mortgage, charge, or lien upon the debtor's estate or any part thereof," which is followed immediately by a definition of "Secured Creditor" as meaning a creditor holding such security.

At a later stage of the argument the file from the Bankruptcy Court was brought before us, when it appeared that, after the order of Johnston J. dismissing the debtor summons, and before the institution of the present appeal, Beatrice Ryley had obtained a new debtor summons for the same debt as in the first debtor summons together with a further debt comprising another sum of taxed costs (taxed in the interval). It appeared that the Registrar of the Bankruptcy Court had referred the question of the issue of the second debtor summons to the Judge because of the inclusion of the debt the subject of the previous summons, and the Judge granted the new summons on the case being made that the first summons had been dismissed for irregularity in procedure. It was not disclosed to the learned Judge that an appeal from the order of dismissal was in contemplation, but, on the contrary, the first summons was apparently treated as dead. When these facts were disclosed by the Court file during the hearing of the appeal, objection was raised to the appeal being entertained on the ground that the appellant had by conduct waived the appeal for the purpose of obtaining the second summons, and it was contended in addition that it was not competent to grant the second debtor summons if the first debtor summons granted in respect of one of the debts was to be regarded as alive for the purpose of appeal.

I am not prepared at present to hold that (apart from the facts as to conduct which have emerged during the hearing) it would not be competent for the Court to grant a second debtor summons for a debt, part of which is comprised in a pending debtor summons. It is an important question, but it has not been sufficiently argued on this occasion to enable it to be decided. It is obvious that it may sometimes be of great importance for the preservation of rights, saving prescribed periods of time, and so forth, to be able to obtain and hold a second summons pending a decision on some question which may defeat the first. It is not necessary to decide that question of law on the present occasion, because, apart from that, it appears to me that to treat this as a competent appeal would be to sanction...