Stapleford Finance DAC v Kearney

JudgeMr. Justice Brian McGovern
Judgment Date16 February 2018
Neutral Citation[2018] IEHC 79
Docket Number[2017 No. 2382 S.]
CourtHigh Court
Date16 February 2018

[2018] IEHC 79


McGovern J.

[2017 No. 2382 S.]


Practice & Procedure – Summary judgment – Deed of settlement – Breach of the representations and warranties – Entitlement to terminate the deed – Plenary hearing – Bona fide defence

Facts: The plaintiff sought an order for summary judgment against the defendant. The plaintiff contented that the defendant had breached the representations and warranties contained in the deed of settlement and it was entitled to the judgment against the defendant for the due amount. The main issue pertained to the sale of subject bonds at the specified amount.

Mr. Justice Brian McGovern was satisfied that the present case was not an appropriate case to grant the summary judgment. The Court directed to proceed with the plenary hearing on all the issues as there were factual disputes between the parties.

JUDGMENT of Mr. Justice Brian McGovern delivered on the 16th day of February, 2018

In this application, the plaintiff seeks summary judgment against the defendant in the sum of €16,896,207.26, arising under a deed of settlement dated 14th November, 2014, (‘ the deed of settlement’).


By agreement dated 23rd May, 2014, the liabilities of the defendant in respect of a facility granted by Anglo Irish Bank Corporation Limited on 13th February, 2009, were purchased by the plaintiff. On 28th October, 2014, the balance due on the said account was €19,256,207.26.


The plaintiff agreed to enter into a settlement agreement with the defendant whereby the said debt of €19,256,207.26, was compromised by the defendant paying to the plaintiff the sum of €2,360,000 and subject to the terms and conditions in the deed of settlement.


Paragraph 4.1.1 of the deed of settlement states:-

‘Stapleford is entering into this agreement based on certain financial information provided and representations made to it by the Borrower. In this regard, the Borrower expressly represents and warrants to Stapleford that:

(a) he has provided full and complete details to Stapleford;

(b) he has at all times kept Stapleford aware of all material facts or circumstances relative to his business or affairs which, on the basis of utmost good faith, should be disclosed to Stapleford; and

(c) any information provided to Stapleford in connection with the matters referred to in this agreement and the obligations in respect of same was, at the time provided, true and accurate in all respects.’


Clause 4.2 of the deed of settlement provides as follows:-

‘The Borrower acknowledges and agrees that in the event of a breach of his obligation pursuant to this agreement or in the event of a breach of the representations and warranties set out in this agreement within a period of 24 months from the date hereof that Stapleford has the right to terminate this agreement and commence proceedings against them in respect of the outstanding Liabilities.’


The deed of settlement also provided that the security held by the plaintiff over certain subordinated bonds of Anglo Irish Bank Corporation Limited (‘ the bonds’) was to be released to the defendant following payment to the plaintiff of the settlement amount of €2,360,000.


On 14th November, 2014, the defendant paid the settlement sum of €2,360,000. Subsequently, the plaintiff claimed that it learned that the defendant entered into a transaction whereby the bonds were sold for the amount of €6m and that at no stage did he disclose that he was contemplating any such transaction, whether in the lead up to and/or at the time of the execution of the deed of settlement on 14th November, 2014, or at any stage thereafter.


Accordingly, the plaintiff claims that the defendant has been in breach of the representations and warranties contained in Clause 4.1.1 of the deed of settlement and that, in accordance with Clause 4.2 thereof, the plaintiff is entitled to judgment against the defendant in the sum of €16,896,207.26, being the outstanding liability.

Legal Test for Summary Judgment

The test for summary judgment is very well established in this jurisdiction and can be found in a number of decisions including the following: Ryanair v. Aer Rianta [2001] 4 I.R. 607, Danske Bank A/S Trading As National Irish Bank v. Durkan New Homes [2010] IESC 22, and Harrisrange v. Duncan [2003] 4 I.R. 1. In general, leave to defend should be granted unless it is very clear that there is no defence. A mere assertion of a...

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