Wheelock v Promontoria (Arrow) Ltd

JurisdictionIreland
JudgeMr. Justice Twomey
Judgment Date28 February 2020
Neutral Citation[2020] IEHC 114
Date28 February 2020
Docket Number[2018 No. 9598 P]
CourtHigh Court
BETWEEN
PATRICK WHEELOCK
PLAINTIFF
AND
PROMONTORIA (ARROW) LIMITED

AND

STEPHEN TENNANT
DEFENDANTS

[2020] IEHC 114

Twomey J.

[2018 No. 9598 P]

THE HIGH COURT

COMMERCIAL

JUDGMENT (Ex Tempore) of Mr. Justice Twomey delivered on the 28th day of February, 2020
Summary
1

This case involves an unjust enrichment claim by the first named defendant, Promontoria, against the plaintiff, Mr. Wheelock. The within judgment relates to a motion for discovery issued by Mr. Wheelock against Promontoria.

2

Mr. Wheelock claims that the nature of the remedy sought by Promontoria against him, is such as to entitle Mr. Wheelock to know the price that Promontoria paid for Mr. Wheelock's loan and security, which it purchased from National Asset Loan Management Limited (“NAMA”). This loan had originally been extended by Irish Bank Resolution Corporation (formerly Anglo Irish Bank Corporation Limited (“Anglo Irish Bank” and the “Bank”)).

3

In particular, Mr. Wheelock claims that for there to be unjust enrichment it must be at the ‘expense’ of the claimant, and that therefore this issue can only be determined by considering the price paid for his loan and security by Promontoria, which Mr. Wheelock seeks in this discovery application. This Court concludes that based on a consideration of the nature of the unjust enrichment remedy, it is not relevant and necessary for the price of the loan and security to be disclosed by Promontoria. This Court therefore refuses the discovery sought by Mr. Wheelock.

Background
4

This is an application by the plaintiff, Mr. Wheelock for an order for discovery against the first named defendant, Promontoria, pursuant to Order 31, rule 12 of the Rules of the Superior Courts. Mr. Wheelock seeks the discovery of:

“All documents evidencing or recording the purchase price, or sum, paid by Promontoria in acquiring the Loan Facility and/or Deeds or Mortgage.”

5

The proceedings themselves are concerned with an application by Mr. Wheelock for a declaration that, inter alia, the Deeds of Mortgage pursuant to which the second named defendant, Mr. Tennant, was appointed as Receiver over lands in Waterford (the “Monvoy Lands”), are void as a result of the alleged forgery of Mr. Wheelock's signature on the mortgage with Anglo Irish Bank, by his former accountant, Mr. Michael O'Leary (“Mr. O'Leary”). This mortgage and the related facility letter were subsequently acquired by Promontoria.

6

There are separate proceedings between the parties in which Promontoria seeks judgment under the facility letter and in which Mr. Wheelock claims that the sums owed under the relevant facility letter of some €2.6 million are not due, as his signature thereon was similarly forged by Mr. O'Leary (in linked proceedings Promontoria (Arrow) Limited v. Wheelock & O'Leary [2014/9112 P]).

7

Mr. Wheelock entered a settlement agreement with Mr. O'Leary, who allegedly forged his signature on the mortgage and the facility letter, and he received a sum of €1.5 million in order to compromise the proceedings that he had instituted against Mr. O'Leary.

8

It is alleged by Promontoria that all or part of this sum is compensation received by Mr. Wheelock for his being allegedly bound to repay the sums under the facility letter and to have the Monvoy Lands subject to a mortgage, arising from the alleged forgery.

9

In the current proceedings, Promontoria counterclaims that Mr. Wheelock benefited from the purchase and development of the Monvoy Lands using the funds obtained under the facility letter and secured by the mortgage and that he also benefited from the payment of the settlement sum of €1.5 million from his former accountant.

10

On this basis, Promontoria alleges that if the mortgage is held to be void in these proceedings, that this will lead to the unjust enrichment of Mr. Wheelock, in that he will own the Monvoy Lands mortgage-free and he will have the benefit of €1.5 million compensation for having his signature forged on that allegedly void Mortgage.

11

In order to defend this counterclaim of unjust enrichment, counsel for Mr. Wheelock argues that it is relevant and necessary for the purchase price paid by Promontoria for the loan facility and mortgage to be disclosed to him. This, he argues, is because a key ingredient in any unjust enrichment claim against a defendant is that the enrichment was at the plaintiff's expense.

12

On this basis, counsel for Mr. Wheelock argues that in order to determine whether the alleged enrichment was at Promontoria's expense, it is relevant and necessary for Mr. Wheelock to be informed of the price at which Promontoria acquired Mr. Wheelock's loan and security. For example, counsel for Mr. Wheelock argues that if Promontoria acquired Mr. Wheelock's loans and security for €100,000, then it would be inequitable for Promontoria to get the benefit of the entire settlement sum of €1.5 million. This is why in Mr. Wheelock's view, it is relevant and necessary for Mr. Wheelock to be provided with the details of the price paid by Promontoria for his loans and related security.

13

Counsel for Mr. Wheelock relied on the decision in Promontoria (Aran) Ltd v. Sheehy [2019] IEHC 613, in which the disclosure of the amount paid by the plaintiff for the purchase of loans by the plaintiff from a predecessor bank was ordered, on the grounds that the proceedings in that case concerned equitable relief, including unjust enrichment, and so that while it...

To continue reading

Request your trial
1 cases
  • Promontoria (Aran) Ltd v Sheehy
    • Ireland
    • Court of Appeal (Ireland)
    • 16 April 2020
    ...this court the parties in correspondence agreed that a recent decision of Twomey J in Wheelock v Promontoria (Arrow) Limited and Tennant [2020] IEHC 114, on discovery in the context of an unjust enrichment claim, should be brought to the attention of the court. However on 27 March 2020 that......
1 firm's commentaries
  • Loan Portfolio Price A Relevant Factor In Irish Unjust Enrichment Claim
    • Ireland
    • Mondaq Ireland
    • 7 May 2020
    ...of Appeal in Sheehy can be compared to the approach taken by the High Court recently in Wheelock v Promontoria (Arrow) Ltd and Tennant [2020] IEHC 114. In Wheelock, the High Court refused to order discovery of the price paid by Promontoria to NAMA for the transfer to it of the plaintiff's l......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT