F (P) v D (K) and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 01 March 2010
• Neutral Citation: [2010] IEHC 63
• Docket Number: [No. 5054/5055/5056/2009]
• Court: High Court
• Date: 01 March 2010

[2010] IEHC 63

THE HIGH COURT

[No. 5054/5055/5056/2009]

F (P) v D (K) & Ors

BANKRUPTCY

IN THE MATTER OF

P. F.

APPLICANT

AND

K.D., N.M. AND S. McN.

RESPONDENTS

BANKRUPTCY ACT 1988 S8

MIN FOR COMMUNICATIONS v M & ORS UNREP MCGOVERN 12.5.2009 2009 IEHC 413

BANKRUPTCY ACT 1998 S8(6)(B)

BANKRUPTCY

Debtor's Summons

Motion to dismiss - Summonses based on judgment debt - Whether issue arose on summonses requiring litigation outside bankruptcy proceedings - Whether court precluded from undertaking investigation of merits of case - Minister for Communications, Energy and Natural Resources v M [2009] IEHC 413 (Unrep, McGovern J, 12/5/2009) - Bankruptcy Act 1988 (No. 27), s. 8 - Summonses dismissed (2009/5054/5055/5056 - Dunne J - 1/3/2010) [2010] IEHC 63

F(P) v D(K), (M)N & (McN) S

Ms. Justice Dunne

1 Three separate applications have been brought by P.F. seeking the dismissal of bankruptcy summonses issued by K.D., N.M. and S.McN., all of which were served on the said P.F. on the 21^st May, 2009. (The said P.F. will be referred to herein as the "applicant" and the said K.D., N.M. and S.McN. will be referred to hereinafter as "the respondents").

2 The factual background of each individual case is the same and arises out of the same circumstances and for that reason it is convenient to deal with the matters in one judgment.

3 The applicant herein swore three affidavits in almost identical terms seeking the dismissal of the bankruptcy summonses herein pursuant to the provisions of s. 8 of the Bankruptcy Act1988, which provides, inter alia, at subs. (5) as follows:-

4 2 "5. A debtor served with a bankruptcy summons may apply to the court in the prescribed manner and within the prescribed time to dismiss the summons.

6. The court -

(a) may dismiss the summons with or without costs, and

5 (b) shall dismiss the summons if satisfied that an issue would arise for trial."

6 The background to this matter appears from the affidavits of the applicant sworn herein on the 3^rd June, 2009. It should be noted that each of the respondents has issued a bankruptcy summons in respect of a sum of €50,000 alleged to be due by the applicant to the respondents on foot of judgments entered on the 11^th August, 2008. In his affidavit grounding this application the applicant states that the judgment referred to in the bankruptcy summons was one which purported to have been granted with his consent, and he has denied that there was a consent judgment, and he further denies that he is indebted to the respondents in any sum amounting to €50,000. He stated that at the time proceedings were issued against him he was represented by a firm of solicitors, Michael Glynn & Company Solicitors of 98 O'Connell Street, Limerick. He was aware that proceedings had been issued and was advised by his solicitor that they would be fully defended. He stated in his affidavit that he never heard anything else in respect of the proceedings until he was served with a notice of a fi. fa. in September, 2008. He deposed to the fact that since then he has tried to get an explanation as to why judgment was entered against him by consent but he has been unable to "get any assistance". He brought proceedings in the High Court seeking an order requiring his then solicitors, Michael Glynn & Company, to deliver his file to him. He states on affidavit that he never received any correspondence from the offices of Michael Glynn & Company in respect of the proceedings, and that he never gave his consent to the judgment. He added that a review of the file showed that no such correspondence exists. He added that he has a full defence to the proceedings to which I will refer further in the course of this judgment.

7 As I have said, the background to this matter relates to a judgment obtained against the applicant and another individual, J.O'N.. The applicant and the respondents and J.O'N. became involved for the purpose of developing a site in Co. Tipperary. Each was to contribute in different ways. A partnership agreement was prepared by Michael Glynn & Company Solicitors dated the 29^th May, 2006. Land, the subject of the proposed development, was purchased and a company was incorporated on the 13^th July, 2006, in which the partners were equal shareholders. Ulster Bank had provided loan facilities in relation to the proposed development and subsequently became concerned as to the financing of the development. Arrangements were made to refinance the agreement and with a view to that proposed refinancing an agreement was entered into on the 24^th August, 2007, whereby the said J.O'N. and the applicant agreed to purchase the interests of the respondents in the partnership, their interest in D.M.P. Limited and a house on lands situate in Co. Tipperary. It is submitted by the applicant that that agreement was conditional on the consent of Ulster Bank being obtained to this arrangement. It is the contention of the applicant that the agreement of the 24^th August, 2007, is not enforceable on the basis that it was conditional on the consent of Ulster Bank. That consent was not forthcoming. Notwithstanding that, payments were made on foot of the agreement and these payments were in the sum of €50,000 each. Those payments were made around the 10^th September, 2007. It is contended that those payments were made from funds provided by J.O'N. as a sign that the agreement was entered into in good faith.

8 Each of the respondents herein has sworn a replying affidavit. Although not in identical terms, there are a...