Templecrone Co-Operative Agricultural Society Ltd v Frank (Orse Frankie) McLoughlin
 IECA 14
THE COURT OF APPEAL
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. 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, a company now in voluntary liquidation.
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. 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 payments were made thereafter out of the company account and he exhibits a number of cheques drawn on the company account over the period May 2007 to August 2008 to demonstrate the truth of that assertion. He also deposed to the fact that he paid off all monies due on foot of his personal account with the plaintiffs in February 2007 by the payment of a cheque in the sum of €2,715 and in respect of which he produced a supporting Statement of Account.
12. In August 2007 Mr. McLoughlin maintains that the plaintiff left his company with no option, because of mounting liabilities, to enter into a debt repayment plan which it did on 27 th August 2007. He contends that when he signed that agreement he did so as agent on behalf of the company and that in doing so he was not acknowledging that he personally was indebted to the plaintiff in the sum of €76,000, as might otherwise be assumed from the content thereof. He supported his assertion that he was not personally liable for the sums then outstanding by reference to the fact that on 30 th August 2008 the company made a payment by cheque from it's bank account in the sum of €7,500 which the plaintiff duly accepted in reduction of the company's liabilities.
13. In response, Mr. McGill denied that he was instructed to issue a new trading account in the name of McLoughlin Developments Limited in 2007 and he relied upon the fact that at all times the plaintiff traded with the defendant by reference to an account numbered M535 which never changed from inception. Further, an account of all monies outstanding on his account was sent to the defendant personally each month
14. Mr. McGill further claimed that the position adopted by Mr. McLoughlin vis-agrave;-vis the circumstances in which he signed the agreement of August 2008 were simply incredulous. He contends that the agreement of August 2007 clearly demonstrates that the defendant had a personal liability of €76,000 at that time and that he acknowledged this liability when he signed the debt repayment plan in his own name. According to Mr. McGill, the court ought not to draw any inferences from the fact that cheques were accepted from McLoughlin Developments Limited in aid of the reduction of the defendant's personal liabilities as it was not concerned about where the monies came...
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