Ferris v Ward
| Jurisdiction | Ireland |
| Judge | BLAYNEY J. |
| Judgment Date | 01 January 1998 |
| Date | 01 January 1998 |
| Docket Number | [S.C. No. 333 of 1995 and 334 of 1995] |
| Court | Supreme Court |
1995 WJSC-SC 4475
THE SUPREME COURT
Hamilton C.J.
O'Flaherty J.
Blayney J.
and
and
and
Citations:
HUTCHENS V DEAUVILLE INVESTMENTS PROPERTY LTD 1986 68 ALR 367
IRISH SHELL V ELM MOTORS LTD 1984 ILRM 595
AMERICAN CYANAMID CO V ETHICON LTD 1975 1 AER 504
WAKEFIELD V DUKE OF DUCCLUCH 12 LT 628
Synopsis:
INJUNCTION
Interlocutory
Fair question - Damages - Remedy - Adequacy - Capacity of applicant to meet claim of respondent to damages - Difficult questions of law not addressed at hearing of motion - Whether assignee of right to enforce guarantee must have acquired right to payment of debt guaranteed - (333,334/95 - Supreme Court - 7/11/95) - [1998] 2 IR 194
|Ferris v. Ward|
|Ward's Wholesale Meats Ltd. v. Ferris|
JUDGMENT delivered on the 7th day of November 1995 by BLAYNEY J. [NEM DISS]
These are appeals in two related cases against the decision of Keane J. on applications seeking interlocutory injunctions. Before indicating the nature of the injunctions sought, or the orders appealed, it is necessary to set out the background facts.
Martin V. Ferris is the receiver of Ward's Wholesale Meats Limited (the company). He was appointed receiver on the 1st September 1995 by Anglo Irish Bank Corporation Plc (the bank) under the power contained in a debenture dated the 29th November 1989 and made between the company (under its then name Tramview Limited) of the one part and Hill Samuel Bank (Ireland) Limited of the other part. That debenture was given to secure (inter alia) the liability of the company under a guarantee dated the 29th November 1989 whereby the company guaranteed all sums which might become due from Michael Ward (Mr. Ward) and his wife to Hill Samuel Bank (Ireland) Limited. It is common case that by virtue of a deed made on the 15th March 1995 between T.S.B. Bank Plc of the first part Knightsdale Limited of the second part and the bank of the third part, the interest of Hill Samuel Bank (Ireland) Limited under the debenture of the 29th November 1989 and the benefit of the guarantee of the same date are now vested in the bank.
On the 16th June 1993 Hill Samuel Bank Limited (which on the 30th October 1992 had acquired the business of Hill Samuel Bank (Ireland) Limited) recovered judgment against Mr. Ward in the sum of £261,104.11. Between June 1993 and June 1994 Mr. Ward sold certain lands and there is a dispute as to whether the bank accepted the proceeds of such sale in full satisfaction of the amount owing. Mr. Ward's claims that it did but the bank contends that as of the 30th August 1995 there was a balance of £96,504.56 still owing by Mr. Ward. On that date a written demand was served on the company by the bank claiming payment of this sum under the company's guarantee of the 29th November 1989. Payment was refused by the company and two days later a receiver was appointed by the bank.
In the course of his examination of the affairs of the company the receiver ascertained that there were book debts owing to the company which appeared to amount to approximately £80,000. However, Mr. Ward disputed that these debts were owing to the company. He informed the receiver that on the contrary the debts were due to him personally in respect of a business which he was carrying on in his personal capacity and he refused to agree to the debts when collected being paid into a joint account pending the resolution of this conflict.
The receiver instituted his proceedings on the 18th September 1995. In the general endorsement of claim in the plenary summons he claims a declaration that his appointment as receiver is valid and that the debtors listed in a schedule attached to the plenary summons are debtors of the company. In addition he claims an injunction restraining Mr. Ward from dealing in any manner with the debtors other than by collecting the debts and lodging them to an account in the joint names of the receiver and Mr. Ward. On the same day as the plenary summons was issued the receiver brought a motion seeking an interlocutory injunction in the same terms as the injunction sought in the plenary summons. This motion came before Keane J. on the 29th September 1995 and the order sought was granted. The terms of the order were that Mr. Ward "by himself his servants or agents or otherwise howsoever be restrained pending the trial of this action or until further order from dealing in any manner whatsoever with the debtors listed in the schedule to the plenary summons otherwise than by collecting same and lodging same to said account in the joint names of the plaintiff's and defendant's solicitors."
On the 27th September 1995 the company issued its proceedings against the receiver in which it seeks an injunction restraining the receiver from purporting to act as receiver of the company's assets. Its motion seeking an interlocutory injunction to this effect was heard at the same time as the receiver's motion and was unsuccessful.
The company now appeals against the refusal of its motion and Mr. Ward appeals against the injunction granted to the receiver. But while there were two separate orders made by Keane J., and accordingly two separate appeals, there is in reality only one issue to be determined and that is whether Mr. Ward, pending the hearing of the two actions, should be restrained from collecting the book debts which the receiver says belong to the company. How this issue is determined will in effect decide both appeals. I propose accordingly to concentrate on the appeal against the interlocutory injunction granted to the receiver.
The case made by Mr. Forde on behalf of Mr. Ward was very succinct. He submitted that the purchaser of a guarantee cannot enforce the guarantee until he has also acquired the debt secured by the guarantee. While it is common case, as I indicated earlier that the bank is entitled to the benefit of the guarantee, Mr. Forde disputes that there is vested in the bank the right to call on Mr. Ward to repay the debt. He accepts that by a series of transactions which it is not necessary to detail the right to the debt became vested in T.S.B. Bank Plc but he contends that it has not been validly assigned by T.S.B. Bank Plc to the bank. He submits that by reason of this the bank was not entitled to claim payment of the debt from the company under its guarantee.
The manner in which the receiver claims that the...
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