Fabri Clad v Stuart
| Jurisdiction | Ireland |
| Judge | Ms. Justice Máire Whelan |
| Judgment Date | 27 August 2020 |
| Neutral Citation | [2020] IECA 247 |
| Docket Number | Record Number: 2019/220 |
| Court | Court of Appeal (Ireland) |
| Date | 27 August 2020 |
[2020] IECA 247
Whelan J.
Ní Raifeartaigh J.
Power J.
Record Number: 2019/220
THE COURT OF APPEAL
This is an appeal against the judgment and order of Binchy J. made on 4 April 2019 exercising his discretion to refuse the appellant's application for an order pursuant to 0.13. r.11 of the Rules of the Superior Courts (“RSC”) to set aside judgment in the sum of €98,252 marked by the respondent in the Central Office of the High Court on 9 May 2017. The respondent cross-appeals on two alternative net issues.
The appellant is the father of the first defendant. Jeffrey Stuart, who at all material times traded as Stuart Steel Fabrications. The respondent provided steel fabrication materials to the first defendant from 2009. On or about 22 January 2014 at the offices of his solicitor Cleary & Co., The Diamond, Raphoe, Co. Donegal, the appellant signed a guarantee for the indebtedness of his son on foot of which the within proceedings were subsequently brought.
The guarantee dated 22 January 2014 was made between “Leslie Stuart of the one part and Long Roulston Ltd trading as WDL Engineering… of the other part.” It recites as follows: -
“1. It is hereby agreed and acknowledged by the parties hereto that Long Roulston Limited are owed a sum of €98,252.00 by Geoffrey (sic) Stuart trading as Stuart Steel. The said Geoffrey (sic) Stuart is the son of Leslie Stuart, the other party to this agreement.
2. It is hereby agreed by the parties hereto that the said Leslie Stuart is prepared to guarantee the debt owed by Geoffrey (sic) Stuart trading as Stuart Steel to Long Roulston Limited and it is agreed by the parties hereto that the sum owed is €98,252.00 for the avoidance of doubt.
3. Accordingly, Leslie Stuart hereby guarantees the debt of Geoffrey (sic) Stuart trading as Stuart Steel as owed to Long Roulston Limited and the said Leslie Stuart agrees to make two annual payments in the sum of €5,000 each. The first payment is to be made at the end of February of each year, and the second payment being made on or before the end of October of each year until such time as the debt has been redeemed in full. It is also hereby agreed that Long Roulston Ltd is entitled to interest. It has been agreed between the parties hereto that the initial interest rate shall be charged at 2.5% in respect of the first three years of this agreement. In respect of any balance due after three years, interest shall be charged at 5.5% until such time as the debt has been redeemed in full.
4. In the event of default and for the avoidance of doubt it is hereby agreed and acknowledged by the parties hereto that it shall be open to Long Roulston Ltd to bring whatever proceedings they may wish against Geoffrey (sic) Stuart trading as Stuart Steel and/or Leslie Stuart of Mondooey, Manorcunningham, Co. Donegal.”
The instrument was executed by the appellant which execution was witnessed by his solicitor. The guarantee was signed on behalf of the company by Derek Long and Michael Roulston but not executed by it. The relevance, if any, of this fact will be considered, presently.
Over the two years thereafter no part of the said monies was discharged under the terms of the guarantee. On 22 March 2016 summary proceedings were instituted by the respondent company against the parties. Service was effected on the appellant on 14 April 2016. No appearance was entered by or on behalf of the appellant.
Over a year later on 9 May 2017 judgment in default of appearance in the sum of €98,252 was marked in the Central Office and on the said date a F.I.F.A. issued directing seizure of the goods of the appellant and his son to satisfy the judgments obtained against them.
On 6 November 2017, six months after judgment was obtained, the appellant's solicitor wrote to the respondent's solicitors, Lanigan Clarke of Letterkenny, in relation to the judgment. There is a dispute between the parties as to whether the said letter was written “without prejudice” and whether its acknowledgement of the liability is receivable in evidence which will be considered in due course. At all events it is clear evidence that the appellant knew of the judgment as of early November 2017.
On or about 24 January 2018, over eight months subsequent to judgment being obtained, the appellant issued a notice of motion as a litigant in person seeking an order pursuant to 0.13, r. 11 setting aside the judgment marked by the respondent in the Central Office on 9 May 2017. The grounding affidavit of the appellant sworn on 24 January 2018 asserted that: -
(a) he was never properly served with the proceedings and “therefore .. .did not enter and file an appearance within the time prescribed in the Rules”:
(b) “…the plaintiff to these proceedings is not a party to the guarantee… and …I am at a loss to understand how the plaintiff has issued these proceedings against me”; and,
(c) he had a “full defence and counterclaim to the claim of the plaintiff, in circumstances, where the defendants have carried out steel erection work for and on behalf of the directors of plaintiff… to a value of up to €100,000…”.
In his first replying affidavit sworn on behalf of the respondent company on 14 February 2018, Michael Roulston, a director of the company established that service had been validly effected upon the appellant and a copy of the affidavit of service of Brendan Joyce sworn on 20 April 2016 was exhibited. Thus, any contention that there was a frailty in the service of the summary proceedings on the appellant was baseless.
Michael Roulston explained in his said affidavit that the respondent company was incorporated on 24 July 2007 under the name Long Grier Ltd. Thereafter, by a resolution dated 15 October 2009, it resolved to change its name to Long Roulston Ltd. Subsequently by a further resolution dated 16 October 2015 it resolved to change its name to Fabri-clad Engineering Ltd., its current name. He demonstrated that the respondent company is one and the same as Long Roulston Ltd. for whose benefit the guarantee was provided by the appellant. This accords with the special indorsement of claim which pleaded “2. The Plaintiff was formerly known as Long Roulston Limited, which name was changed by the Registrar of Companies on the 20 th of October 2015.” The duplicate certificate of incorporation on change of name exhibited was certified on 30 October 2015.
To the appellant's contention that he had a full defence and counterclaim it is deposed: “While some work was carried out by the first named defendant, no work was carried out by the second named defendant for the plaintiff.” He denied that there was either a valid defence or a valid counterclaim to the judgment obtained by the respondent against the appellant on 9 May 2017. He asserted that the judgment had been obtained regularly in the Central Office of the High Court in default of appearance and had been accepted in open correspondence sent by the appellant's solicitors thereafter.
By an affidavit filed on or about 14 June 2018 the appellant posited that the respondent company was not the “entity with which the purported guarantee was entered into.” He deposed that: -
“…if the name of the original entity that entered the purported guarantee was going to be changed then a new guarantee with that new entity should have been executed.”
He also deposed that the: -
“…purported guarantee was not signed for or on behalf of Long Roulston Limited in my presence or in the presence of a solicitor. I say that when I signed I signed a blank document which did not incorporate the purported guarantee or the signing clause for Long Roulston Limited trading as WDL Engineering.”
The appellant deposed that he was commissioned to undertake services at ten named locations: -
“… work valued at in excess of €110,000 plus VAT of 13.5%.”
In an affidavit sworn on 19 July 2018, the respondent company's director. Michael Roulston, with regard to the execution of the guarantee deposed at para. 5: -
“…The guarantee was in fact offered by the second named defendant, was produced by Donogh Cleary, the former solicitor of the second named defendant and was… signed in his presence. Derek Long, the other director of the plaintiff, signed the guarantee in the presence of Mr. Cleary for the plaintiff The guarantee was then brought to me by Mr. Cleary which I then signed on behalf of the plaintiff also.”
It was contended that there was no requirement “that a guarantee be witnessed in the manner alleged by the second named defendant”.
Regarding the appellant's contention that works had been performed by him for the benefit of the respondent company it was contended that the documents produced to support that claim: -
“…appear if anything to indicate that they were performed by the first named defendant and not the second named defendant.”
It was contended that such documents failed to demonstrate any defence to the appellant's liability under the guarantee, but could instead give rise to a counterclaim: -
“The alleged facts which the second named defendant refers to arose subsequent to and independently of the liability created by the guarantee. Nothing more than bare assertions are offered by the second named defendant in this regard.”
The affidavit deposed that no statement of accounts was produced by the appellant. With regard to the letters dated 15 January 2018, exhibited in support of a contention that monies are owed by the respondent company to the appellant, it provided at para. 10: -
“…I would...
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Castletown Foundation Ltd v Magan
...account’. The case law was summarised by this court (Whelan J, with whom Ní Raifeartaigh and Power JJ. agreed) in Fabri Clad v. Stuart [2020] IECA 247. Whelan J. explained (at para. 103): ‘Whether the counterclaim contended for could amount to a defence by way of set-off was considered by C......