Deutsche Bank AG v H.B. Dennis Motors (Fairview) Ltd ; Deutsche Bank AG v H.B. Dennis Motors Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Robert Eagar |
| Judgment Date | 20 May 2019 |
| Neutral Citation | [2019] IEHC 331 |
| Docket Number | [RECORD NO. 2015 1767 S] |
| Court | High Court |
| Date | 20 May 2019 |
[2019] IEHC 331
THE HIGH COURT
Eagar J.
[RECORD NO. 2015 1767 S]
[RECORD NO. 2017 251 S]
AND
AND
Summary judgment – Costs – Personal guarantees – Plaintiff seeking summary judgment – Whether the case was based on documents
Facts: The plaintiff, Deutsche Bank AG, is a credit institute, the first defendant, H.B. Dennis Motors (Fairview) Ltd, is a limited company, the second defendant in relation to the proceedings 2015 1767 S is Mr P Dennis and the second defendant in the proceedings 2017 251 S is Mr J Dennis. Both were company directors of the first defendant, and a receiver was appointed to the first defendant in or about May 2012. The proceedings against Mr P Dennis were commenced by summary summons issued on the 15th September 2015 setting out the claim and seeking judgment as against the second defendant in the sum of €1,568,607.17 and the costs in respect of the proceedings. The case against Mr J Dennis, by notice of motion dated the 17th November 2017, sought liberty to enter final judgment as against the first defendant in the sum of €1,195,756.23 and a similar sum against the second defendant.
Held by the High Court (Eagar J) that when Permanent TSB Finance Ltd sold its rights, titles, interests and benefits to the plaintiff, Mr P Dennis was written to at his home address at 114, Howth Road, Clontarf, Dublin 3 and in respect of both loans he never sought to raise any issues which were the subject matter of purported defences. Eagar J held that when First Citizen Finance DAC wrote to both the secretary of H.B. Dennis Motors (Fairview) Ltd by way of letter of demand, and to Mr P Dennis as guarantor, and a reference made to the 9th June 2010 and 17th July 2008, formal demand was made for the amount outstanding on the loan which was guaranteed. Eagar J held that the references in the affidavit of Mr P Dennis to Spinnaker Securitisation was irrelevant and the attempt to add an amount of confusion to the issues before the court. Eagar J held that the first named company consented to judgment in the sum of €2,086,636.67 on the 17th November 2009. In all the circumstances, Eagar J held that the court would award summary judgment to the plaintiff in the sum of €1,568,560.89 in the proceedings 2015 1767 S.
Eagar J held that the court was not satisfied to grant summary judgment against Mr J Dennis in the proceedings 2017 251 S in respect of the failure to produce personal guarantees. The court had indicated that this case was based on documents. The court directed that this matter be heard by plenary hearing.
Judgment granted; judgment refused.
The Court proposes to give judgment in relation to these matters together as essentially the same issues arise with each of the second named defendants, Peter Dennis and John Dennis, respectively.
The Court would make these remarks at the outset of its judgment: -
(i) These two cases were called on in the non-jury list for one hour by counsel on behalf of all parties.
(ii) This was clearly a very careless estimation as this Court has set aside nearly two days in relation to these cases.
(iii) This Court insisted upon brief written submissions on behalf of the plaintiff setting out his claim on the basis of same, and the defendants setting out what they say are defences which are raised for the purposes of the jurisprudence in relation to summary judgements.
(iv) This Court has been submerged with various submissions with the defendants appropriately serving their submissions in relation to their defences on the plaintiffs eighteen – page submissions in relation to the nature of the claim. The Court is very unsatisfied with the way this matter has been presented by all parties.
The background of the case is that the plaintiff is a credit institute, the first named defendant is a limited company, the second named defendant in relation to 2015 1767 S is Peter Dennis and the second named defendant in 2017 251 S is John Dennis. Both were company directors of the first named defendant, and a receiver was appointed to the first named defendant in or about May 2012.
Firstly, the Court will deal with the case of the second named defendant, Peter Dennis, and will in turn deal with the second named defendant, John Dennis.
The proceedings against Peter Dennis were commenced by summary summons issued on the 15th September 2015 setting out the claim and seeking judgment as against the second named defendant in the sum of €1,568,607.17 and the costs in respect of the proceedings. On the 18th July 2012 the company and the first named defendant were in receivership.
On the 17th November 2017, a notice of motion for liberty to enter final judgment as against the second named defendant was entered. This was grounded on the affidavit of Martin Leonard.
Mr. Leonard introduced himself as being the lending manager with First Citizen Finance DAC (hereinafter FCF), an agent of the plaintiff, Deutsche Bank AG, and was duly authorised by the plaintiff to make this affidavit.
He said that prior to working with FCF he was a lending manager with Permanent TSB Finance Ltd until the 24th December 2012. It is in that capacity and in his later capacity with FCF that he is familiar with the subject matter of the proceedings including the loans, guarantees, defaults and demands and that he has further fully examined the relevant books and records relating to the defendant herein. Those books and records were compiled and used in the usual and ordinary course of business.
By letter of offer dated the 10th October 2011, Permanent TSB Finance Ltd. (hereinafter PTSBF) offered to advance to the first named defendant a sum of €391,000 for the purpose and subject to the terms and conditions set out in the letter of offer. In relation to the security required, a personal guarantee of Peter Dennis was sought.
On the 7th July 2008, the board of H.B. Dennis (Fairview) Ltd. agreed that it was in the best interests of the company that the credit facility should be accepted and it was resolved that Peter Dennis and John Dennis were authorised to complete the formal acceptance of the said letter of offer and counter indemnity. By guarantee in writing dated the 7th July 2008, (the 2008 guarantee) the second named defendant unconditionally and irrevocably guaranteed to discharge on demand all sums of money then or at any time owing or remaining unpaid by the first named defendant to PTSBF under the facility letter dated the 4th July 2008 plus interest and expenses from the date of such demand. It was noted: -
‘1. The Guarantor hereby irrevocably and unconditionally guarantees on demand to pay to PTSBF all sums of money due under the attached facility letter dated the 4th July 2008 (hereinafter the ultimate balance) which now or at any time shall be owing or remain unpaid to PTSBF by the customer anywhere and/or whether on any banking or other account or otherwise in any manner whatsoever.
2. The Guarantee shall be in addition to and not in substitution for any other guarantee of the customer given to PTSBF by the guarantor and shall be deemed to be an indemnity.
3. The liability of the Guarantor shall not be affected nor shall this guarantee be discharged or diminished by reason of 311 any present or future bill, note, guarantee, indemnity, mortgage, charge, pledge, lien or other security or right or remedy held by or available to PTSBF being or becoming wholly or in part void, voidable or unenforceable on any ground whatsoever by PTSBF from time to time dealing with exchanging varying, realising or failing to enforce any of these same’.
By letter of offer dated the 26th May 2010, PTSBF offered to advance to the first named defendant the sum of €1,641,340 and by Board Resolution of the 9th June 2010, by H.B. Dennis Ltd. of Fairview, it is agreed that the best interests of the company that credit facilities should be accepted and it was resolved that Peter Dennis and John Dennis be and are hereby authorised to complete the formal acceptance of the said letter of offer.
PTSBF advanced to the first named defendant the sum of €1,641,340 on or about the 15th June 2010 and by guarantee in writing dated the 9th June 2010, Peter Dennis unconditionally and irrevocably guaranteed to discharge on demand all sums of money then or at any time owing or remaining unpaid by the first named defendant to PTSBF.
The Court notes the following, found stipulated in the formal guarantee in bold capitals on the last page prior to the signature of Peter Dennis:–
‘WARNING AS GUARANTOR OF THIS LOAN YOU WILL HAVE TO PAY OFF THE LOAN, THE INTEREST AND ALL ASSOCIATED CHARGES IF THE BORROWER DOES NOT. BEFORE YOU SIGN THIS GUARANTEE YOU SHOULD GET INDEPENDENT LEGAL ADVICE.’ (this Court's emphasis)
Further, the guarantee continues: -
‘The Guarantor hereby confirms that: -
(i) He is fully aware of the nature of this guarantee, the effect of which had been explained to, and understood by him.
(ii) He has been advised to take and has been given the due opportunity to take separate independent legal advice on the effect of this guarantee.
(iii) He is now willing to be legally bound by the terms of this guarantee.
There is no evidence before the court as to whether or not Peter Dennis took legal advice.
On the 22nd October 2012 the second named defendant gave his written consent to the assignment or transfer of the benefit of the guarantees to any third party. The terms of the consent letter were: -
‘Dear Sirs,
I refer to the Guarantee(s) and any other Guarantees provided by me to PTSBF in connection with the...
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