McGonagle & anor -v- McAteer, [2017] IEHC 672 (2017)

Docket Number:2017 2774 P
Party Name:McGonagle & anor, McAteer
 
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THE HIGH COURT

CHANCERY[2017 No. 2774 P]

BETWEEN

SEAN MCGONAGLE

CONNIE MCGONAGLEPLAINTIFFSAND

MICHAEL MCATEERDEFENDANT

JUDGMENT of the Hon. Ms. Justice Stewart delivered on the 10th day of November, 2017.

  1. In the application currently before the Court, the plaintiffs seek injunctive relief as against the defendant, who was appointed under a deed of appointment of receiver dated 13th June, 2013, over a number of secured properties set out in the schedule to that deed. The plaintiffs issued plenary proceedings on 27th March, 2017. The notice of motion for interlocutory relief was issued on 12th June, 2017, following on from a number of other orders sought from and adjudicated upon by the |High Court.

  2. The plaintiffs first proceeded by way of ex parte application and sought interim injunctive relief. The defendant was informally put on notice and he undertook not to proceed with the proposed auction and/or disposal of the properties the subject matter of the proceedings pending the issuance and determination of the application for injunctive relief made to this Court. The plaintiffs did not issue the notice of motion for interlocutory relief for two and a half months, by which stage the defendant indicated to the Court that it was neither in the position, nor was it willing, to continue aforesaid undertaking. In those circumstances, the matter proceeded to hearing on the 28th July, 2017. The matter was to resume the following Tuesday, 30th July. However, due to unforeseen circumstances, the Court was unavailable to finalise the application and the hearing resumed and concluded on the afternoon of Tuesday 3rd October, 2017.

  3. The plaintiffs contend that there is a fair issue to be tried at the hearing of the within proceedings. They rely on the existence of a complaint made to the Financial Service Ombudsman (hereinafter referred to as the FSO) in June, 2012. The plaintiffs maintain that that complaint is extant and could not have been processed in the intervening period due to their inability to access information and documents sought on foot of a data protection request and the procurement of the release of the file from the solicitors that had formally represented the plaintiffs in related matters. It should be pointed out at this stage that no information regarding the details and/or further progress of that complaint has been put before this Court. Furthermore, the defendant is not a party to that complaint. Insofar as the Court is aware, the complaint relates to the actions of Ulster Bank, the lenders who initially advanced monies to the plaintiffs, and the plaintiffs’ former solicitor, M.D. White and Co. Ltd. The plaintiffs contend that the lodging and pursuit of that complaint was a legitimate and reasonable action to take that excuses and/or justifies any alleged delay in commencing these proceedings and seeking relief by way of interlocutory injunctions.

  4. The plaintiffs also argue that the extent of their liabilities to Ulster Bank and their successor, Promontoria (Aran) Ltd., has not been finalised and is open to dispute. They also submit that there are issues arising on foot of the signatures attaching to the guarantees in respect of the company’s indebtedness. More specifically, they allege that the document does not contain their signatures. Further there are issues raised in relation to the dates of the guarantees, as well as the waiver of legal advice document allegedly signed and dated by the plaintiffs. In particular, it is argued that the date beside the second-named plaintiff’s signature appears to have been changed from a 20 to a 28, in contradistinction to the witness’s signature, which is dated 20th March, 2009. It is also submitted that the plaintiffs are not aware of any such witness and did not meet that person at the Ulster Bank branch in Buncrana in or around that time.

  5. The plaintiffs borrowed monies from Ulster Bank Ltd., both in a personal capacity and also as directors of the company, Malin Holiday Homes Ltd. The purpose of the company was to build a number of holiday homes on lands contained in the some of the folios the subject matter of these proceedings. Following the defendant’s appointment, it appears that he proceeded to sell three of the properties developed on the said lands. These sales occurred in the intervening period...

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