Ulster Bank Ltd v Walter de Kretser and Another
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hedigan |
| Judgment Date | 10 June 2015 |
| Neutral Citation | [2015] IEHC 359 |
| Court | High Court |
| Date | 10 June 2015 |
[2015] IEHC 359
THE HIGH COURT
BETWEEN
AND
Banking & Finance – Default in repayment of loan – Summary judgment – Lack of bona fide defence
Facts: The plaintiff applied for an order of summary judgment against the defendants along with interest on the principal amount on account of failure of the defendants to repay the debt incurred by them.
Mr. Justice Hedigan granted an order for summary judgment against the defendants. The Court held that the defendants could not make a bona fide defence to escape the liability of non-payment of the debt. The Court held that the defendants being businessmen were fully aware of the implications of entering into the agreement with the plaintiff and mere assertion of undue influence without any cogent evidence would not be any help to the defendants.
JUDGMENT of Mr. Justice Hedigan delivered on the 10th of June 2015
1. The plaintiff applies herein for liberty to enter final judgment against the defendants in the amount of €98,952 together with further interest on the principle sum of €89,350.95 from the 19 th of August, 2010 which now amounts to €126,077.06. The claim is on foot of a joint and several guarantee dated the 5 th of July, 2007 over the obligations of a company of which both defendants were directors named Stones Finishes Supply Limited.
2. In return for this guarantee the plaintiff granted an overdraft facility to the company. The guarantee was limited to €100,000 plus interest. The company defaulted on its debts under this facility as a result of which on the 7 th of January, 2009 the plaintiff sent a letter of demand of that date, in which it called in the guarantee although it referred mistakenly to the date of the guarantee as the 5 th of July, 2008.
3. The defendants resist this application and seek to have the matter put to plenary hearing. They also seek to enforce what they say was an agreement by the plaintiff to accept, in settlement of their claim, the proceeds of an Ark Life Assurance policy (valued at €55,011.68 on the 25 th of August, 2009).
4. The defendants put forward by way of their intended defence the following:
(a) They did not have any proper chance to review or understand the guarantee they signed.
(b) The second defendant signed under duress or the undue influence of her husband.
(c) They had no independent legal advice.
(d) The consideration was past.
(e) The guarantee was not a continuing one.
5. The plaintiffs respond in the affidavit of Damien Devlin to these proposed defences as follows:
(a) The facility was addressed to both defendants two weeks before they signed the guarantee. Both defendants had previously on at least four occasions each provided guarantees in respect of respectively the second defendants own company and the company herein.
(b) No evidence of undue pressure or duress is put forward. There is only an assertion.
(c) The defendants had plenty of time to obtain legal advice.
(d) The document of guarantee was one under seal and in any event the continuing overdraft facility was sufficient consideration and
(e) The issue of a continuing guarantee does not arise. The plaintiffs move upon a guarantee entered into in relation to the transaction in respect of which the demand was made.
6. In relation to the claim about the assurance policy the plaintiffs state the offer to accept this was conditioned on payment being made within 28 days. This was not done and so their acceptance of the offer lapsed.
7. The principles applicable to this type of application are well established. To proceed to plenary hearing a legally statable defence must be identified. Assertion of a ground for defence is not enough. See Harrisrange Limited v. Duncan [2002] IEHC 14...
To continue reading
Request your trial
-
Allied Irish Banks Plc v G.R.O. Oil Ltd
...Summary judgments 8 The law on summary judgments is well established and was summarised by Hedigan J. in Ulster Bank v. de Kretser [2015] IEHC 359 at para. 7: ‘The principles applicable to this type of application are well established. To proceed to plenary hearing a legally statable defen......
-
Ulster Bank (Ireland) Ltd v De Kretser
...2016 1 This is an appeal from a decision of Hedigan J. in the High Court delivered on 10th June 2015 ( Ulster Bank Ltd. v. de Kretser [2015] IEHC 359) in which he held that the defendants, Mr. de Kretser and Ms. Fox ('the appellants'), had not established an arguable defence to a claim for......
-
Governor and Company of the Bank of Ireland v Curran
...in order to enter into the guarantee that would represent no more than the correct legal position. In Ulster Bank v. Walter deKrester [2015] IEHC 359, Hedigan J. held:- ‘…that absent some clear evidence of the need to insist upon customers obtaining, it there is no obligation on a bank to i......
-
Criminal Assets Bureau v Foley
...on an application for summary judgment. In particular we were referred to Ulster Bank limited v. Walter de Krester and Gillian Fox [2015] IEHC 359; IBRC v. McCaughey [2014] 1 IR 749; Aer Rianta c.p.t. v. Ryanair Limited [2001] 4 IR 607; Danske Bank a/s (t/a National Irish Bank) v. Durkan Ne......