Sancus [IOM] Ltd v Corbett

• Jurisdiction: Ireland
• Judge: Ms Justice Marguerite Bolger
• Judgment Date: 01 May 2024
• Neutral Citation: [2024] IEHC 256
• Court: High Court
• Docket Number: [Record No. 2022/316 S]

Between

Sancus (Iom) Limited

Plaintiff

and

Denis Corbett

Defendant

[2024] IEHC 256

[Record No. 2022/316 S]

THE HIGH COURT

Counsel for the plaintiff: John E. Donnelly S.C., Paul J. Brady B.L.

Counsel for the defendant: Ross Gorman B.L.

JUDGMENT of Ms Justice Marguerite Bolger delivered on the 1 ^st day of May 2024

1 . This is a claim for summary judgment on a summary summons dated 25 October 2022. For the reasons set out below I am refusing this application.

2 . The defendant was one of three guarantors for a loan advanced by the plaintiff to a third party in July 2017 which was not repaid. The plaintiff entered into a settlement agreement with the defendant and the other two guarantors dated 17 September 2021 which provided for, inter alia, the net proceeds of the sale of a site to be paid to the plaintiff pursuant to a solicitor's letter of undertaking that was attached to the terms of the settlement and which undertook to pay the proceeds of sale within 48 hours of the completion of the sale of the site. The terms of settlement also provided that if there was any default in respect of that payment, that the parties consented to a High Court judgment in respect of the loan against them by the plaintiff for such amount as may be outstanding at the date of such breach.

3 . The terms of that settlement agreement are also reflected in correspondence preceding the agreement. Neither that correspondence nor the terms of the settlement agreement provided for a date by which the site was to be sold or any default provision in the event of the site not being sold. The first time a deadline for the sale of the site was asserted was in correspondence from the plaintiff's solicitor of 26 October 2021, shortly after the execution of the agreement. Further deadlines were asserted and then extended by the plaintiff's solicitor in subsequent correspondence. During this time the defendant's solicitor's correspondence records the attempts that were being made to sell the site and to keep the plaintiff informed of progress and the reasons for various delays in the sale. There is no suggestion that those attempts to sell the site were not bona fide. Most of that correspondence refers to the defendant's co-guarantor, Denton Agri Limited, and some of it also refers to the defendant. Eventually by letter dated 21 September 2022 the plaintiff's solicitor wrote to the defendant's solicitor (who was also the solicitor for Denton Agri Limited) making the following points for the first time:-

That letter was sent to the defendant's solicitor expressly as solicitor for Denton Agri Limited and only mentioned the defendant as one of the three parties against whom the summary proceedings would be issued.

• (i) That clause 1 of the settlement agreement was to be complied with by “your client” on or before 5p.m. on 7 October 2022 and that time shall be of the essence in relation to this date.

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