Dyer v Dolan

• Jurisdiction: Ireland
• Judge: Keane J.
• Judgment Date: 10 June 1993
• Neutral Citation: 1993 WJSC-HC 1971
• Docket Number: No. 1474/1992
• Court: High Court
• Date: 10 June 1993

1993 WJSC-HC 1971

THE HIGH COURT

No. 1474/1992

DYER v. DOLAN

BETWEEN

PAUL E. DYER

PLAINTIFF

AND

MARK F. DOLAN

DEFENDANT

Citations:

US FEDERAL BANKRUPTCY CODE CH 7

US FEDERAL BANKRUPTCY CODE S523

RAINFORD V NEWELL-ROBERTS 1962 IR 95

MAUBOURQET V WYSE IR 1 CL 471

PEMBERTON V HUGHES 1899 1 CH 781

GAFFNEY V GAFFNEY 1975 IR 133

BINCHY IRISH CONFLICTS OF LAW 601

Words & Phrases:

CEF

Subject Headings:

JUDGMENT: enforcement

Keane J.

1 This is an application on behalf of the Plaintiff for an Order giving liberty to him to enter final judgment against the Defendant in the terms of the Special Endorsement of Claim on the Summary Summons. The claim is for the sum of US$937,000.00 claimed to be due by the Defendant to the Plaintiff pursuant to a judgment of the Massachusetts Superior Court for Hampden County in the United States dated the 4th June, 1990, and for interest on the sum claimed. The motion is resisted by the Defendant and two affidavits have been filed, one by the Defendant himself and one by his attorney in the United States, Mr Christopher Robinson.

2 The relevant facts are as follows. The Defendant was engaged in a property development in the Virgin Islands in the late 1980's and was advanced sums in respect of it by the Plaintiff. On the 9th February, 1989, the Defendant executed a promissory note in favour of the Plaintiff in the sum of US$937,000.00. The sum due on foot of the promissory note not having been paid, the Plaintiff instituted proceedings in the Massachusetts Superior Court. No answer to the Plaintiff's originating document having been received within the time prescribed by the relevant rules, the Plaintiff initiated the procedure for obtaining judgment by default. Shortly afterwards, the Defendant filed an answer but subsequently, on the 4th June, 1990, judgment by consent was entered against the Defendant for the sum in question. The Defendant having failed to pay the sum due on foot of the judgment, a writ of execution was issued.

3 One month after the issue of execution, the Defendant and his wife filed voluntary petitions for bankruptcy in the U.S. Federal Bankruptcy Court, pursuant to Chapter 7 of the U.S. Federal Bankruptcy Code. It was stated in the petition that the Defendant and his wife had been resident in the Commonwealth of Massachusetts during a period of 180 days preceding the filing of the petition. On the 10th August, 1990, the Defendant and his wife filed Statements of Affairs, in which the Defendant acknowledged that he had been resident in Massachusetts both at the time of the filing of the petition and during the six preceding years and also acknowledged the judgment which had been obtained against him by the Plaintiff. On the 28th January, 1991, the Trustee in Bankruptcy reported that there were no assets in the estate other than what are termed "exemptions" of US$8,185.00.

4 Under the Federal Bankruptcy Law of the United States, when a debtor obtains his discharge of bankruptcy, his pre-bankruptcy creditors are not normally entitled to pursue him in respect of their claims. In certain circumstances, however, under the Federal Bankruptcy Code, and in particular S.523 thereof, certain debts, including those arising as a result of false pretences, false representations, actual fraud, larceny or wilful or malicious injury to property, are "non-dischargable", i.e. the creditor may recover the full amount of the debt notwithstanding the bankruptcy. The procedure under which it is determined whether a debt is "non-dischargable" is called an "adversary proceeding" and on the 14th December, 1990, the Plaintiff and his brother, Dennis Dyer, commenced such an action in the U.S. Federal Bankruptcy Court seeking such a determination on the ground that the debts were non-dischargable by virtue, inter alia, of the fraud, false pretences and false representations of the Defendant. No answer was filed in response to these proceedings and on the 1st February, 1991, the Plaintiff applied for a default judgment against the Defendant. The Defendant and his wife had in fact moved to this jurisdiction in October, 1990, and have been living here since then. The proceedings were served upon the Defendant by ordinary pre-paid post at the addresses given by him in the bankruptcy petition but were returned by the postal authorities. The Defendant had not filed with the Bankruptcy Court any statement of change of address as was required by the relevant bankruptcy rule. The proceedings had also been served on the Defendant's attorney, Mr Robinson. The Defendant in his Affidavit stated that the reason he had not notified the Bankruptcy Court of his change of address was that the Plaintiff and persons acting on his behalf were seeking to harass and intimidate him and his family in various ways and had also ransacked his offices. These allegations are denied by the Plaintiff. On the 6th February, 1991, the Bankruptcy Judge, Miss Justice Kenner, granted the Plaintiff's motion and ordered that the Defendant should not obtain a discharge in his bankruptcy from the judgment for...