Promontoria (Arrow) Ltd v Dineen
| Jurisdiction | Ireland |
| Judge | Ms. Justice Costello |
| Judgment Date | 16 July 2018 |
| Neutral Citation | [2018] IEHC 430 |
| Docket Number | [No. 5942] |
| Court | High Court |
| Date | 16 July 2018 |
[2018] IEHC 430
THE HIGH COURT
BANKRUPTCY
Costello J.
[No. 5942]
IN THE MATTER OF PETITION FOR ADJUDICATION OF BANKRUPTCY BY PROMONTORIA (ARROW) AGAINST RICHARD DINEEN
PROMONTORIA (ARROW) LTD
Bankruptcy summons – Extension of time – Standing – Respondent seeking the dismissal of bankruptcy summons – Whether issues arose for trial
Facts: The respondent, Mr Dineen, applied to the High Court seeking the dismissal, pursuant to s. 8(6) of the Bankruptcy Act 1988, of bankruptcy summons issued by the petitioner, Promontoria (Arrow) Ltd, on the 23rd October, 2017. The application was advanced by the respondent upon two grounds: 1) there was an issue for trial in relation to the validity of the order extending the time for serving the bankruptcy summons and whether the bankruptcy summons was spent; 2) an issue arose in respect of the petitioner's standing and/or entitlement to institute and prosecute the proceedings which must be determined outside the bankruptcy process.
Held by Costello J that, having analysed each of the two issues raised by the respondent in support of an application to dismiss the bankruptcy summons pursuant to s. 8 (6), no issue would arise for trial.
Costello J held that she would refuse the application to dismiss the bankruptcy summons.
Application refused.
The issue for decision in this judgment is whether the bankruptcy summons issued by the petitioner on the 23rd October, 2017 should be dismissed pursuant to s. 8 (6) of the Bankruptcy Act, 1988 as amended.
Section 8 (5) and (6) of the Bankruptcy Act, 1988 ('the Act') provides:
'(5) A debtor served with a bankruptcy summons may apply to the Court in the prescribed manner and within the prescribed time to dismiss the summons.
(6) The Court—
(a) may dismiss the summons with or without costs, and
(b) shall dismiss the summons if satisfied that an issue would arise for trial.'
In a judgment delivered on the 16th July, 2018 in Ennis Property Finance DAC v. Dominic Carney I summarised the relevant legal principles as follows:
'4. From these passages the following points emerge:
(i) Once an issue for trial arises on the summons, the summons must be dismissed.
(ii) The issue raised must be real and substantial.
(iii) The issue raised may be an issue of fact or of law.
(iv) If it is an issue of fact, it must have some credibility.
(v) Mere assertion that an issue arises is insufficient.
(vi) An assertion must be supported by evidence of fact which would, if true, arguably give rise to an issue that requires to be litigated outside the bankruptcy proceedings.
(vii) If the issue raised is an issue of law which was well established and as to which there was no doubt the summons should not be dismissed.'
Anglo Irish Bank Corporation Plc offered the respondent certain facilities by letters of loan offer dated 2nd May, 2007 and 30th April, 2008 which were duly accepted by the respondent. By letter of loan offer dated 22nd December, 2009 Anglo Irish Bank Corporation Ltd granted the respondent a further facility('the Loans').
The petitioner says that the loans and associated security were acquired by National Assets Loan Management Ltd ('NALM'). By global deed of transfer dated 11th December, 2015 the Loans a nd associated security were transferred from NALM to the petitioner. Clause 2 of the deed of transfer contained a certificate pursuant to s. 108 of the National Asset Management Act, 2009 in the following terms.
'Pursuant to s. 108 of the NAMA Act, the Assignor (a NAMA group entity under the NAMA Act) hereby certifies that the bank assets listed in the Schedule(s) hereto have been transferred to it in accordance with part 6 of the NAMA Act and that those assets are held by the assignor as at the date hereof.'
By deed of confirmation in relation to loan balances dated 11th December, 2015 between NALM and the petitioner, NALM confirmed to the petitioner that each of the loan balances was not less than the corresponding amounts set out in the column headed 'total outstanding debt balance (ccy)' in schedule 1 as of the cut-off date and that the loan balances represent the amounts outstanding under the facilities as of the cut out date. The balances in respect of the respondent's indebtedness were set out in p. 49 of the schedule.
The petitioner served a particulars of demand and notice requiring payment prior to the issue of a bankruptcy summons on the respondent which was dated the 4th May, 2017 and claimed payment in the sum of €20,025,705.17. The respondent did not pay the sum or any part thereof and the petitioner applied for and was given leave to issue a bankruptcy summons against the respondent on the 23rd October, 2017. The petitioner was unable to effect personal service of the bankruptcy summons upon the respondent. It issued an ex parte docket dated 21st November, 2017 seeking an order pursuant to O. 76 r. 14 (1) of the Rules of the Superior Courts for the time for the service of the bankruptcy summons to be extended for a further 28 days and an order for substituted service of the bankruptcy summons upon the respondent by ordinary prepaid post at his residential address. An order in those terms was made on the 27th November, 2017.
The petitioner served the bankruptcy summons on the respondent in accordance with the terms of the order. By notice of application to dismiss the bankruptcy summons issued in the examiner's office on the 18th December, 2017 the respondent applied to have the bankruptcy summons dismissed.
After an exchange of affidavits between the parties, the application was advanced by the respondent upon two grounds.
Order 76 r. 14 (1) of the Rules of the Superior Courts provides as follows:
'14. (1) A bankruptcy summons shall be personally served within twenty-eight days from the date of the summons ...If personal service within the...
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Promontoria (Arrow) Ltd v Richard Dineen
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