Templecrone Co-Operative Agricultural Society Ltd v Frank (Orse Frankie) McLoughlin

 
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[2015] IECA 14

THE COURT OF APPEAL

Peart J.

Irvine J.

Mahon J.

Court of Appeal No: 40/11/CA
Templecrone Co-Operative Agricultural Society Ltd v McLoughlin
Templecrone Co-Operative Agricultural Society Limited
Plaintiff/ Respondent

and

Frank (Orse Frankie) McLoughlin
Defendant/Appellant

40/2011 - Peart Irvine Mahon - Court of Appeal - 29/1/2015 - 2015 IECA 14

Appeal - Summary Judgement - Finances - Debt Repayment Plan - Company - Practice and Procedures - Evidence - Documents - Personal Liability - Credibility

1

1. This is an appeal against an Order made in the High Court by Hedigan J on 13 thJanuary 2011, whereby he granted summary judgment to the plaintiff in the sum of €68,595.78.

Background
2

2. By summary summons issued on 18 th February 2009, the plaintiff claimed repayment of the sum of €68,670.18 in respect of building supplies allegedly provided to the defendant, a builder, on foot of an agreement entered into between them on 9 th February 2001. The same sum was also claimed on foot of what is described as a "debt repayment plan" entered into between the parties on 27 th August 2008.

3

3. By Notice of Motion dated 15 th October 2009 the plaintiff sought liberty to enter the final judgment and the parties each swore a number of affidavits in support of their respective positions.

4

4. The grounding affidavit of Mr. McGill sworn on the plaintiff's behalf referred to the fact that by August 2007 the defendant had run up a debt of €76,000 and he exhibited invoices referable to that debt, with the exception of one invoice for a sum of €74.40 which had been misplaced.

5

5. Mr. McGill maintained that on 27 th August 2008 the defendant personally agreed to repay the outstanding arrears of €76,000 in monthly instalments of €7,000 per month commencing August 2008. That agreement, he says, was reduced to writing and its terms and conditions contained in an undated letter addressed to the defendant which he then duly signed.

6

6. The plaintiff only received one payment under the agreement last mentioned and that was made by way of a cheque drawn on the account of McLoughlin Developments Limited which Mr. McGill maintains was accepted against the defendant's personal liability in respect of his account with the plaintiff and also under the debt repayment plan.

7

7. Due to the defendant's default, a letter of demand was sent to him in November 2008 seeking payment of the outstanding arrears. No response having been received to that letter, proceedings were issued on 18 th February 2009.

8

8. Mr. McLoughlin, the defendant, claims that the liability the subject matter of these proceedings is that of his company, McLoughlin Developments Limited, and that he gave no assurance or indemnity to the plaintiff in respect of that company's debts or liabilities.

9

9. Mr. McLoughlin accepts that he had a personal account with the plaintiff which was opened in February 2001. However, he maintains that that agreement was altered in January 2007 when he formed a limited liability company and commenced trading under the name of McLoughlin Developments Limited, a company now in voluntary liquidation.

10

10. Mr. McLoughlin asserted that in January 2007 he asked the plaintiff to open a new account in his company's name and that the plaintiff agreed to this proposal. Thereafter he says that all invoices were issued to McLoughlin Developments Limited. He later rode back somewhat on that statement when he advised the court that the invoices were in fact made out to McLoughlin Developments without the addition of the word Limited. He maintains that at all material times that the goods provided by the plaintiff post January 2007 were delivered pursuant to orders made by his company's employees to sites under the company's control and were signed for by the company's employees.

11

11. In support of his ascertain that since 2007, the trading agreement was conducted between the plaintiff and McLoughlin Developments Limited, Mr. McLoughlin said that all...

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