National Irish Bank Ltd v Graham

JurisdictionIreland
Judgment Date10 January 1994
Date10 January 1994
Docket Number[1993 No. 930P]
CourtHigh Court

High Court

[1993 No. 930P]
[1993 No. 1186]
National Irish Bank Ltd. v. Graham
National Irish Bank Ltd. and Tom Grace
Plaintiffs
and
Eric Samuel Graham, Robert George Graham and Robert Graham, Senior
Defendants
National Irish Bank Ltd. v. Graham
National Irish Bank Ltd.
Plaintiff
and
Eric Graham, George Graham and Robert Graham
Defendants

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...

To continue reading

Request your trial
25 cases
  • Meath County Council v Hendy
    • Ireland
    • Court of Appeal (Ireland)
    • 14 March 2023
    ...an undertaking, McKechnie J. considered that the position adopted by Keane J. (as he then was), in National Irish Bank Limited v Graham [1994] 1 IR 215 was correct. McKechnie J. observed at para. 26 of his judgment:- “There is little doubt in my mind that in proceedings of a criminal or qua......
  • Competition Authority v Licensed Vintners Association and Others
    • Ireland
    • High Court
    • 24 July 2009
    ...Man Plc v Chelsea Girl Ltd [1988] FSR 217 not followed; Re Bramblevale Ltd [1970] Ch 128 approved; National Irish Bank Ltd v Graham [1994] 1 IR 215 applied - Competition Act 2002 (No 14), ss 4(1), 4(5) and 14(2) - Treaty of Rome 1957, articles 81(2) and 81(3) - Rules of the Superior Courts......
  • Start Mortgages Ltd v Christopher Doheny and Another
    • Ireland
    • High Court
    • 19 December 2014
    ...19.2.2007 2007/48/10159 2007 IEHC 79 RSC O.45 r9 GLANVILLE THE ENFORCEMENT OF JUDGMENTS 1999 PARA 16.12 NATIONAL IRISH BANK LTD v GRAHAM 1994 1 IR 215 1994/5/1506 HONNIBALL v CUNNINGHAM 2010 2 IR 1 2006/29/6197 2006 IEHC 326 KEANE EQUITY AND THE LAW OF TRUSTS IN THE REPUBLIC OF IRELAND 2E......
  • Brightwater v Allen & Robert Walters Ltd
    • Ireland
    • High Court
    • 12 May 2005
    ...contract - Restraint of trade clause -- Appropriate standard of proof - Attachment and committal - National Irish Bank Ltd v Graham [1994] 1 IR 215 followed - Finding of limited breach of undertaking - (2005/93P - Laffoy J - 12/5/2005) [2005] IEHC 155 -Brightwater v Allen The plaintiff was......
  • Request a trial to view additional results
1 firm's commentaries
  • Court Of Appeal Provides Welcome Clarification For Judgment Creditors
    • Ireland
    • Mondaq Ireland
    • 16 August 2017
    ...citation available). 2 For instance by way of a writ of fieri facias (an order for the sheriff to seize goods) or a garnishee order 3 [1994] 1 I.R. 215. 4 See Start Mortgages v Doheny [2014] IEHC 656. The content of this article is intended to provide a general guide to the subject matter. ......
1 books & journal articles
  • Some reflections on the law of contempt
    • Ireland
    • Irish Judicial Studies Journal No. 2-2, July 2002
    • 1 July 2002
    ...may be a requirement of mens other hand, it appears that the standard of proofs is proof beyond reasonable doubt: see NIB v. Graham [1994] 1 I.R. 215. 4See Arlidge, Eady and Smith On Contempt (2nd ed., 1999), para. 3-30 and in Canada, at least, flagrant defiance of a civil order may constit......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT