Templecrone Co-Operative Agricultural Society Ltd v Frank (Orse Frankie) McLoughlin
| Jurisdiction | Ireland |
| Judge | Ms Justice Mary Irvine |
| Judgment Date | 29 January 2015 |
| Neutral Citation | [2015] IECA 14 |
| Court | Court of Appeal (Ireland) |
| Date | 29 January 2015 |
and
[2015] IECA 14
Peart J.
Irvine J.
Mahon J.
THE COURT OF APPEAL
Appeal - Summary Judgement - Finances - Debt Repayment Plan - Company - Practice and Procedures - Evidence - Documents - Personal Liability - Credibility
Facts: This case was concerned with an appeal against an Order made in the High Court in 2011, whereby Hedigan J granted summary judgment to the plaintiff in the sum of €68,595.78 after he had claimed repayment of the sum of €68,670.18 in respect of building supplies allegedly provided to the defendant, on foot of an agreement entered into between them on 9th February 2001. The same sum was also claimed on foot of what was described as a "debt repayment plan" entered into between the parties on 27th August 2008. 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. Mr. McGill maintained that on 27th 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. The plaintiff only received one payment under the agreement and that was made by way of a cheque drawn on the account of McLoughlin Developments Limited which Mr. McGill maintained was accepted against the defendant's personal liability in respect of his account with the plaintiff and also under the debt repayment plan. Following a failure to respond to a letter of demand, proceedings were issued in 2009. The defendant claimed that the liability the subject matter of current proceedings was 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. It was submitted on behalf of the defendant that he had a fair and reasonable probability of having a real or bona fide defence to the claim. He relied upon the following facts: (1) That the McLoughlin Developments cheques were the only ones exhibited in the proceedings thus lending credibility to his assertion that at all times the plaintiff's contract was with McLoughlin Developments Limited; (2) That the invoices exhibited almost all referred to "McLoughlin Developments", consistent with his assertion that the plaintiff's account was with the company rather than with the defendant; (3) That subsequent to the debt repayment plan McLoughlin Developments Limited had written a cheque for €7,500 which the plaintiff duly cashed. Again, evidence to support the alleged contractual relationship between the plaintiff and McLoughlin Developments Limited; and (4) that at all stages the materials, the subject matter of the outstanding debt, were delivered to sites under the control of McLoughlin Developments Limited where they were signed for by the company's employees. On the plaintiff's behalf it was submitted that the defendant's affidavits amounted to no more than mere assertions and that the defendant's credibility was wanting having regard to the very significant documentary evidence put forward by the plaintiff.
Held by Justice Irvine in light of the available evidence and submissions presented that she was satisfied that the Court must allow the appeal. The Court was further satisfied that the defendant had demonstrated on affidavit a fair or reasonable probability of having a real or bona vide defence to the claim. It was reasoned that the submitted invoices and cheques provided credible evidence in support of his contention that the liability, the subject matter of current proceedings, as a matter of fact and law were those of McLoughlin Developments Limited. The Court further reasoned that the exhibited cheques in respect of goods supplied by the plaintiff subsequent to the agreement of January 2007, all of which were drawn on the company bank account also lent evidential weight to his claim that he was not contractually bound to the plaintiff in respect of any such liabilities.
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.
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. 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. 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. 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. 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. 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. 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. 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,...
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