National Irish Bank Ltd v Graham
| Jurisdiction | Ireland |
| Judgment Date | 10 January 1994 |
| Date | 10 January 1994 |
| Docket Number | [1993 No. 930P] |
| Court | High Court |
High Court
Cases mentioned in this report:—
In re Bramblevale Ltd. [1970] 1 Ch. 128; [1969] 3 W.L.R. 699; [1969] 3 All E.R. 1062.
Holmes v. Millage [1893] 1 Q.B. 551; 62 L.J.Q.B. 380; 68 L.T. 205; 57 J.P. 551; 41 W.R. 354; 9 T.L.R. 331; 37 Sol. Jo. 338; 4 R. 332.
In re Shephard (1889) 43 Ch. D. 131; 59 L.J. Ch. 83; 62 L.T. 337; 38 W.R. 133; 6 T.L.R. 55.
Practice - Attachment - Contempt of court - Burden of proof - Whether sufficient evidence to find the defendants guilty of contempt.
Receiver - Appointment - Equitable remedy - Whether plaintiff had any interest in the property over which receiver was sought to be appointed - Appointment of receiver by way of equitable execution - Execution of writ of fieri facias - Whether defendants had any equitable interest in property which could not be reached by legal process - Rules of the Superior Courts, 1986 (S.I. No. 15), O. 50, r. 6 (1) - Supreme Court of Judicature (Ireland) Act, 1877 (40 & 41 Vict., c. 57), s. 28.
Practice - Order - Execution - Issue of writ of fieri facias - Whether any impediment to execution of writ.
Equity - Remedy - Appointment of receiver - Whether plaintiff had any interest in the property over which receiver was sought to be appointed - Appointment of receiver by way of equitable execution - Execution of writ of fieri facias - Whether defendants had any equitable interest in property which could not be reached by legal process - Rules of the Superior Courts, 1986 (S.I. No. 15), O. 50, r. 6 (1) - Supreme Court of Judicature (Ireland) Act, 1877 (40 & 41 Vict., c. 57), s. 28.
Notices of motion.
The facts are summarised in the headnote and fully set out in the judgment of Keane J., post.
In the first proceedings the plaintiffs issued a plenary summons on the 9th February, 1993, claiming inter alia injunctive relief restraining the defendants and each of them from interfering with and/or attempting to frustrate the activities of the second plaintiff as receiver and manager appointed by the first plaintiff over the herds of cattle specified in the schedule and the sale of such cattle by the second plaintiff as receiver and manager on foot of a chattel mortgage. By order of the High Court, on the 23rd February, 1993, the defendants were restrained from disposing of any interest in any of the cattle the subject matter of the proceedings and identified in the inventory annexed to the plenary summons or any progeny of such cattle or any other cattle forming part of the defendants' herds save with consent of the second plaintiff and/or the court. On the 22nd September, 1993, the first and second defendants gave an undertaking to the High Court inter alia not to frustrate the activities of the second plaintiff as receiver and manager appointed by the first plaintiff over inter alia the said stock. By notice of motion dated the 1st December, 1993, the plaintiffs sought inter alia attachment and committal of the defendants and each of them for their respective contempt of court in (i) failing to obey the order of the court of the 23rd February, 1993, and (ii) breaching the undertaking given to the court on the 22nd September, 1993.
In the second proceedings the plaintiff issued a summary summons on the 20th September, 1993, claiming the sum of £3,543,840.96 on foot of a term loan and a bridging loan. No appearance was entered by the defendants and judgment was obtained on the 19th November, 1993. An order of fieri facias for the sum of £3,543,840.96 and interest was sued out by the bank on the same day. By notice of motion dated the 8th December, 1993, the plaintiff applied inter alia for an order appointing the second plaintiff in the first action as receiver or as receiver by way of equitable execution over all cattle (i.e. the milking herd) the property of the defendants.
Both motions were heard by the High Court (Keane J.) on the 13th, 17th and 21st December, 1993.
Section 28, sub-s. 8 of the Supreme Court of Judicature (Ireland) Act, 1877, provides:—
"A mandamus or an injunction may be granted or a receiver appointed by an interlocutory order of the Court in all cases in which it shall appear to the Court to be just or convenient that such order should be made, and any such order may be made either unconditionally or upon such terms and conditions as the Court shall think fit."
Order 50, r. 6 (1) of...
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