Tracey v Bowen

JudgeMr. Justice Clarke
Judgment Date19 April 2005
Neutral Citation[2005] IEHC 138
Docket Number[2005 No. 321P]
CourtHigh Court
Date19 April 2005

[2005] IEHC 138


[No. 321P/2005]
Tracey v Bowen





O'MAHONY v HORGAN 1995 2 IR 411 1996 1 ILRM 161 1995/20/5202

BENNETT ENTERPRISES INC & ORS v LIPTON & ORS 1999 2 IR 221 1999 1 ILRM 81 1998/11/3448





Mareva - Plaintiff alleging fraud - Assets within jurisdiction - Whether sufficient evidence of risk of dissipation of assets - Injunction refused (2005/321P - Clarke J - 19/4/2005) [2005] IEHC 138

Tracey v Bowen

Facts: The plaintiff submitted that he and the defendant invested money and that the money was paid at the direction of the defendant to a Spanish bank account. At the time of these proceedings the moneys had not been returned. The defendant denied that the plaintiff made any investment with him and stated that he recommended to the plaintiff the investment opportunity of which he was a co-investor. Accordingly, the plaintiff sought a mareva injunction against the defendant.

Held by Clarke J. in adjourning the application pending the filing of an affidavit by the defendant relating to his ownership and the value of a particular apartment in which he allegedly resided:

1. That there was a fair issue to be tried between the parties as to whether the defendant's role was more central than that for which he contended to a sufficient extent so as to render him liable for the return of the investment.

2. That in all the circumstances of the case, none of the factors outlined by the plaintiff, whether taken alone or collectively were sufficient to create a reasonable apprehension that the defendant would dissipate his assets in an inappropriate fashion. If the defendant filed an appropriate affidavit then it would not be appropriate to grant the interlocutory relief sought.

Reporter: L. O'S.


JUDGMENT of Mr. Justice Clarke delivered 19th April, 2005 .


In this application the Plaintiff seeks a mareva type injunction against the Defendant.


There is much contention in the matters deposed to in the respective affidavits sworn on both sides. However the following brief facts would appear not to be in dispute.


The parties became acquainted when they came to reside in separate apartments within the same apartment complex in Blackrock. While there are disputes as to who instigated the possibility of investments being made by the Plaintiff on the advice of or with the assistance of the Defendant it is common case that the Defendant recommended to the Plaintiff a possible investment and identified to the Plaintiff where certain moneys should be transferred as a means of furthering the investment concerned. The Plaintiff then transferred the moneys in the manner which had been indicated to him by the Defendant.


Little more is common case save that the moneys have not yet been returned and that it had been anticipated, by all concerned, that the moneys would have been returned before now.


The key differences between the evidence of the parties concerning the investment would seem to concern the role of the Defendant. The Defendant has denied that any investment was made with him. His case is that he recommended to the Plaintiff an investment opportunity of which he had been appraised by a Mr. Ken Nunn who is, apparently, a retired property developer based in the United Kingdom. The Defendant's case is that he was a co-investor in the scheme which he regarded as being low risk high yield and involving currency trading. He points to the fact that the moneys invested by the Plaintiff were in fact transferred directly by the Plaintiff from the Plaintiff's account to a bank account in Spain in the name of the Wells Group. The Defendant's case is, therefore, that he did nothing more than appraise the Plaintiff of an investment opportunity which he regarded as appropriate and attractive and in which he was himself to be a co-investor.


As against that the Plaintiff draws attention to the initial introduction by the Defendant of the investment opportunity which was by means of a note on a compliment slip describing the Defendant as "the James Bowen Company" and showing a business address at Foxrock Business Services, Cornelscourt, Foxrock and a Californian address together with a registered office at Herbert Street. He also draws attention to a second document inviting him to consider a separate investment which appears on headed notepaper with the same details as the compliment slip referred to above and which is dated 18th February, 2004. The initial compliment slip note contains writing in the following terms "Bob! I may have two units available - $50,000 x 2".


In those circumstances the Plaintiff contends that the true construction that should be placed on the arrangements between him and the Defendant was to the effect that he was investing money with the Defendant and that the money was paid at the direction of the Defendant to the Spanish bank account concerned. It is not possible at this stage to resolve the conflicts of fact and inferences therefrom which arise from that evidence. There is therefore a fair issue to be tried between the parties as to whether the Defendant's role was more central than that for which he contends to a sufficient extent so as to render the Defendant liable for the return of the investment. At the hearing of the interlocutory application before me it was not contended by counsel on behalf of the Defendant that there was not a fair issue to be tried though he strenuously maintained his client's position that the Plaintiff's proceedings herein were misconceived.


The real issue between the parties on this application is as to whether the Plaintiff has met the criteria which are required to be established in order that the court might grant mareva type relief. In that regard the Defendant places reliance on O'Mahony v. Hogan [1995] 2 I.R. 411 in which the Supreme Court set out the criteria which need to be established prior to the grant of such injunctions in the following terms:-


(a) the Plaintiff should make full and frank disclosure of all matters in his knowledge which are material for the court to know;


(b) the Plaintiff should give particulars of his claim and the amount thereof, fairly stating the points made against it by the Defendant;


(c) the Plaintiff should give some grounds for believing the Defendant has assets within the jurisdiction: the existence of a bank account is normally sufficient;


(d) the Plaintiff should give some grounds for believing that there is a risk of the assets been removed or dissipated; and


(e) the Plaintiff should give an undertaking in damages in the event that he should fail


In particular the Defendant contends that the Plaintiff has produced no or no sufficient evidence for suggesting that there are grounds for believing that there is a risk that his (the Defendant's) assets might be removed from the jurisdiction or dissipated.


As appears from the judgment of Hamilton C.J. in O'Mahony at p. 417 much of the principles identified above stem from the fact that a Plaintiff is not, in the ordinary way, entitled to require from the Defendant, in advance of judgment, security to guarantee satisfaction of a judgment that the Plaintiff may eventually obtain. The precise issues in O'Mahony centered on whether the intended expenditure of certain moneys in that case by the Defendant for the purposes of replacing farm buildings, the burning down of which by fire had led to the entitlement to receive the moneys from the Defendants insurers in the first place, or otherwise in the ordinary course of the Defendant's business as a farmer or to pay his lawful debts amounted to the sort of dissipation contemplated in the test established for the grant of mareva relief. On the facts of that case the Supreme Court held that an expenditure of the moneys concerned in the way contemplated by the Defendant in those proceedings would not amount to such a dissipation. No such issue arises in this case.


The only evidence of any intended or possible...

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