Maher v Dixon

• Jurisdiction: Ireland
• Judge: MR. JUSTICE BUDD
• Judgment Date: 01 January 1995
• Neutral Citation: 1995 WJSC-HC 1752
• Date: 01 January 1995
• Court: High Court

1995 WJSC-HC 1752

THE HIGH COURT

No. 3566p/1987

MAHER v. DIXON

BETWEEN

JOHN MAHER

PLAINTIFF

AND

EDWARD DIXON, TRUCK DISMANTLERS (DUBLIN) LIMITED AND COMMERCIAL VEHICLE DISMANTLERS LIMITED

DEFENDANTS

Citations:

EVANS V BARTLAM 1937 AC 473

RSC O.13 r11

WYLIE, JUDICATURE ACTS (1906) 260–261, 450–451

HALSBURYS LAWS OF ENGLAND 4ED V37 PARA 403

KEAVENEY V SMYTH 1931 LJ IR 22

Synopsis:

PRACTICE

Judgment

Set aside - Application - Company - Defendant - Applicant - Plaintiff claimed damages for personal injuries - Defendant company not trading at date of accident - Shelf company - Judgment entered for plaintiff in default of appearance - Defence on merits established - Court's discretion unfettered - Rules of the Superior Courts, 1986, order 13, r. 11 - (1987/3566 P - Budd J. - 26/10/94) - [1995] 1 ILRM 218.

|Maher v. Dixon|

JUDGMENT

Set aside

Grounds - Defence - Merits - Defendant - Company - Application - Judgment obtained in default of appearance - Claim to damages for personal injuries - Defendant company a mere shelf company at date of injuries - Unfettered discretion of court - (1987/3566 P - Budd J. - 26/10/94) [1995] 1 ILRM 218

|Maher v. Dixon|

1 MR. JUSTICE BUDD ON THE 26 OCTOBER 1994

2 On the 20 September 1986 the unfortunate plaintiff, John Maher, suffered a crush injury to his right hand which resulted in the loss of his little and ring finger and damage to the middle finger. He obtained judgment on the 2 November 1987 before Mr. Justice Lynch in default of appearance against all three defendants. On the 9 December 1989, Mr. Justice Blayney assessed damages at £90,000, £30,000 for pain and suffering and £60,000 for pain and suffering into the future. The plaintiff sustained a serious injury to his right hand. Everyone is sympathetic to the position of Mr. Maher who has not recovered a farthing in damages.

3 This matter comes before me on a motion brought on behalf of Commercial Vehicles Dismantlers Limited, the third named defendant, to set aside the judgment and order obtained against this party. The notice of motion is grounded on the affidavit of James McCarthy sworn on the 23 September 1994. He says that he agreed to purchase the third named defendant "off the shelf" in 1993. In January 1993, he acquired 99 shares in the company with one share being held by Nuala Hussey. He subsequently arranged that this company became the owner of 97 Sandymount Road, a commercial property. When Mr. McCarthy, through Commercial Vehicle Dismantlers Limited, went to sell 97 Sandymount Road on the 1 September 1994, a search disclosed that on the 18 April 1989 a judgment in the amount of £90,000 had been entered in the name of the plaintiff. In these circumstances, the purchaser was reluctant to close the sale. No judgment mortgage was entered affecting this property.

4 Mr. McCarthy says he knows nothing about John Maher or any of the other defendants. His only previous dealing was with John and Betty Nolan from whom he purchased the company in 1993. Mr. and Mrs. Nolan were the directors of Company Consultants Limited who specialise in the formation of companies. Mr. Nolan has sworn an affidavit in which he says that Company Printers Limited (which was subsequently acquired by Company Consultants Limited) caused the third named defendant to be incorporated on the 31 ^st August 1982. There were two directors of that company being Mr. Nolan and his wife Betty Nolan. He had been requested to incorporate such a company on the instructions of James McAuliffe, an accountant in Cork. Mr. Nolan said that the third named defendant never traded and that neither he nor his wife authorised any person to act on the company's behalf. In or about the month of May 1992, Mr. Oliver Conlon, solicitor, contacted Mr. Nolan and stated that he wished to acquire a company. Commercial Vehicle Dismantlers Limited was identified and in January 1993, Mr. McCarthy acquired the 99 shares mentioned. Mr. Nolan says that he never heard of John Maher, the plaintiff, or of Edward Dixon or Truck Dismantlers (Dublin) Limited the first and second named defendants. He further says that he has no record of any documents being served on the said company.

5 Another affidavit was sworn by Mr. McCarthy on the 12 ^thOctober 1994 and sets out further investigations he has made. It would appear that Edward Dixon and Truck Dismantlers (Dublin) Limited (the first and second named defendants) and Dixon...