Governor and Company of Bank of Ireland v Ian Dunne and Another

JurisdictionIreland
JudgeKearns P.
Judgment Date08 November 2013
Neutral Citation[2013] IEHC 484
Docket Number[No. 595S/2012]
CourtHigh Court
Date08 November 2013
Bank of Ireland v Dunne & Cawley

BETWEEN

THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND
PLAINTIFF

AND

IAN DUNNE AND ANDREA CAWLEY
DEFENDANTS

[2013] IEHC 484

[No. 595S/2012]

THE HIGH COURT

PRACTICE AND PROCEDURE

Summary summons

Appeal against order of Master dismissing summary summons - Averment in grounding affidavit of belief that defendants had no bona fide defence - Knowledge that defendants intended to contest case - Whether papers "in order" - Whether Master had jurisdiction to dismiss summary summons where contested case - ACC Bank plc v Thomas Heffernan and Mary Heffernan, (Unrep, Master of the High Court, 18/10/2012) considered - Rules of the Superior Courts 1986 (SI 15/1986), O 37, rr 1, 4, 6 and 7 - Appeal allowed; direction that matter be entered in judge's list (2012/595S - Kearns P - 8/11/2013) [2013] IEHC 484

Bank of Ireland v Dunne

The plaintiff claimed recovery of debts from the defendants as a result of unpaid loans. It was claimed that the defendants were indebted to the plaintiff for a loan of €50,000 in 2006, with accrued interest of €1,648.87 and surcharges of €896.03, as well as €4,427,709.12 with accrued interest of €21,293.79 and surcharges of €61,917.80 for a 2009 loan. The total claimed to be due was €4,570,579.49. In the Masters Court, the plaintiff sought entry of final judgment against the defendants.

By way of affidavit sworn on the 15th of June 2012, Andrea Cawley averred that she had a genuine defence to the plaintiff”s claim. Defence was also proffered by the first named defendant, Ian Dunne, who in his affidavit stated that conflicts of fact had emerged, which could only be resolved at plenary trial following ‘a detailed exchange of proceedings’. The case therefore, was unmistakably contested. The matter came before the Master, who ordered that the summons be dismissed and that the plaintiff pay the costs of the defendants. The plaintiff appealed against this order of the Master.

The core issue to be decided was whether the Master had jurisdiction to dismiss the proceedings, or whether, as a contested case, he was compelled to place the matter in the Judges” list.

Held by Kearns P., this issue could be resolved by reference to Order 37 of the Rules of the Superior Courts. The key distinction to be made was between contested and uncontested cases. The Rules set out that in an uncontested case, the Master ‘may deal with the matter summarily’, but in contested cases, the Master ‘shall transfer the case…to the Court list for hearing’. Kearns P. asserted that the ‘clear and unambiguous’ rules made clear that the Master had no jurisdiction to dismiss the case. In these circumstances, it was held that the Master was obliged by rules of the court to transfer the case to the court list for hearing. The Master”s reasoning was declared incorrect.

The appeal was therefore allowed, and the matter placed on the Judges” list as provided by Order 37 of the Rules of the Superior Courts.

ACC BANK PLC v HEFFERNAN 18.10.2012 UNREP MASTER OF THE HIGH COURT 2012 MR 1

RSC O.37

RSC O.37 r6

RSC O.37 r7

Kearns P.
1

By summary summons issued on the 16th February, 2012, the plaintiff claimed liquidated sums amounting to €4,570,579.49 against each of the defendants, together with interest thereon pursuant to the terms of certain loan agreements and/or statute.

2

The summons alleges that the sums due have arisen on foot of unpaid loans.

3

The special endorsement of claim recites that by letter of loan offer dated the 27th February, 2006, the plaintiff offered to advance to the defendants a loan by way of overdraft facility in the sum of €50,000 for a term, and at an interest rate therein appearing, repayable in accordance with the terms of the said loan offer and subject to the terms and conditions set out in the letter of approval. It is claimed that this loan agreement was accepted by the defendants by an acceptance dated the 1st March, 2006.

4

A further letter of loan offer was made on the 7th August, 2009 whereby the plaintiff asserts that previous loan offers were replaced by a new loan agreement in the sum of €5,232,000, the said loan to be for a term of twelve months expiring on the 31st August, 2010 unless otherwise agreed with the bank.

5

It is claimed that this loan agreement was accepted by the defendants by an acceptance dated the 2nd October, 2009.

6

It is further claimed that pursuant to the loan agreements the plaintiff advanced to the defendants the sums specified in the loan agreements, but in breach of the loan agreements the defendants and each of them have failed to make repayments as provided for in the agreements at the specified time.

7

It is claimed that on the 21st April, 2011, the defendants and each of them were indebted to the plaintiff in the sum of €4,365,275.66 after all just credits and allowances were taken into account.

8

By letters dated the 21st April, 2011, the plaintiff demanded payment of the said monies inclusive of continuing interest thereon at the contract rates as therein appeared.

9

A further letter of demand, to incorporate additional interest, was made on the 19th December, 2011, in which the plaintiff claimed the sum of €4,616,031.01, but claims that no monies had been paid by or on behalf of the defendants, save for €135,000 received on the 21st December, 2011.

10

Accordingly, it is claimed that at the date of issue of the summons the defendants are indebted to the plaintiff in the sum of €57,113.78 plus accrued interest of €1,648.87 and surcharges of €896.03 in respect of the February, 2006 loan agreement and €4,427,709.12 plus accrued interest of €21,293.79 and surcharges of €61,917.80, amounting to a total of €4,510,920.71 in respect of the August, 2009 loan agreement. The total thus claimed to be due and outstanding by the defendants to the plaintiff is €4,570,579.49.

11

An appearance was entered to the summary summons by the second named defendant in her personal capacity on the 2nd March, 2012. An appearance on behalf of the first named defendant was entered in the High Court on the 3rd April, 2012, by Messrs. Kennedys, solicitors, of Ulysses House, Foley Street, Dublin 1.

12

Thereafter by notice of motion dated the 22nd May, 2012, the plaintiffs sought in the Masters Court an order granting liberty to the plaintiff to enter final judgment as against the defendants and each of them in the sum of €4,717,580.02 together with interest as previously outlined.

13

The notice of motion was grounded on the affidavit of Christine Dowling who is the manager employed by the plaintiff with responsibility for the accounts the subject matter of the proceedings herein. She duly deposes that she was properly authorised to make this affidavit for or on behalf of the plaintiff.

14

Having deposed to the facts already recited, she deposed as follows at para. 12 of her affidavit:-

"In the circumstances thereof I say the defendants have no bona fide defence to the proceedings herein and that the appearance has been entered for the purposes of delay and I therefore pray this honourable court for an order within the terms of the notice of motion herein."

15

By affidavit sworn on the 15th June, 2012, the second named defendant deposed that she had a genuine defence to the claim made by the plaintiff herein which she believed had a real prospect of success. In her appearance before this Court she also adopted the reasoning employed by the Master in dismissing the bank's claim in his decision in the case of ACC Bank plc v. Heffernan on the 18th October, 2012. Numerous grounds of defence are relied upon by the second named defendants in seeking to resist the application for summary judgment, including the assertion that the claim should have been brought by Bank of Ireland Private Banking and not the present plaintiffs.

16

By an affidavit sworn on the 6 November, 2012, the first named defendant also asserted that he had a full andbona fide defence to the plaintiff's claim, deposing at para. 35 of his affidavit that significant conflicts of fact had emerged as between the parties "which can only be resolved at a plenary trial, following a detailed exchange of pleadings and the exhaustion of interlocutory procedures such as discovery".

17

The position of both defendants therefore was unmistakable. They were fully contesting the plaintiff's claim. By no stretch of the imagination, therefore, could this be described as an "uncontested case" as envisaged by Order 37 of the Rules of the Superior Courts. However, in...

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4 cases
  • Allied Irish Banks Plc v Pierce
    • Ireland
    • Court of Appeal (Ireland)
    • 21 May 2015
    ...go back as far as 1927, but two of them are of very recent vintage. There is the decision of Kearns P. in Bank of Ireland v. Cawley [2013] IEHC 484. In that case the President held that the Master has no jurisdiction to dismiss proceedings in a contested case. That decision was given on the......
  • Allied Irish Banks Plc v AIB Mortgage Bank and Others
    • Ireland
    • High Court
    • 17 April 2015
    ...Bank v. Tobin [2012] IEHC 348; Hogan J. in ACC Bankv. Heffernan (referred to above) and Kearns P. in Bank of Ireland v. Dunne &Cawley [2013] IEHC 484 for the proposition that the Master has no power to strike out a special summons. 81 It is contended that the decision to strike out, even if......
  • Permanent TSB (Formerly Irish Life and Permanent Plc) v Carr
    • Ireland
    • High Court
    • 28 January 2019
    ...2012. Accordingly, the decision of the Master is set aside.’ Bank of Ireland v. Dunne 28 The third judgment, Bank of Ireland v. Dunne [2013] IEHC 484 (‘ Dunne’), relates to a Summary Summons. The single issue arising in the judgment was whether the Master had jurisdiction to dismiss the 29......
  • Allied Irish Banks Plc v Pierce
    • Ireland
    • Court of Appeal (Ireland)
    • 22 April 2015
    ...that the case ought to have been commenced by plenary summons. 33 27. A similar view was taken by Kearns P. in Bank of Ireland v. Dunne [2013] IEHC 484 where he stated that: "The Master has no jurisdiction in a contested case....Further, where a case is contested and there is some ambiguity......

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