Judgment Title: Danske Bank t/a National Irish Bank -v- Durcan New Homes & ors
Composition of Court: Denham J., Hardiman J., Finnegan J.
Judgment by: Denham J.
Status of Judgment: Approved
Outcome: Allow & Remit to High Court
THE SUPREME COURT
[Appeal No: 296 of 2009]
Danske Bank a/s
trading as National Irish Bank
Durkan New Homes,
Don Casey, Marian Casey and
Tullycross Developments Limited
Judgment delivered the 22nd day of April, 2010 by Denham J.
1. This is an appeal by Durkan New Homes, Don Casey, Marian Casey and Tullycross Developments Ltd., the defendants/appellants, referred to collectively in this judgment as "the appellants", from the order of the High Court of the 17th July, 2009.
2. The High Court ordered that Danske Bank a/s trading as National Irish Bank, referred to in this judgment as "the bank", recover against the first, second and third named appellants the sum of €29,460,000.99 pursuant to the €29,460,000 facility letter dated 22nd February, 2006 and the sum of €7,572,387.81 pursuant to the guarantee and indemnity dated 31st March, 2006 between the bank and the first, second and third named appellants together with interest. And it was ordered that the bank do recover against the fourth named appellant the sum of €7,572,387.81 pursuant to the €7,640,000 facility letter dated 22nd February, 2006 between the bank and the fourth named appellant and the sum of €29,460,000.99 pursuant to the guarantee and indemnity dated 31st March, 2006 between the bank and the fourth named appellant together with interest.
3. While the appellants filed many grounds of appeal there were two fundamental issues before the Court:-
(ii) the substantive issues arising on the agreement.
4. I shall consider first whether this is a case for summary judgment, as determined by the learned High Court judge, or whether he fell into error and it is a case for plenary hearing.
5. The basic facts of this case are that the bank made loans to the appellants. By letter dated the 22nd February, the bank offered to the first, second and third named appellants a loan of €29,460,000 subject to terms. On the same date the bank offered to the fourth named appellant a loan of €7,640,000 on similar terms. The fourth named appellant guaranteed the loan to the first three appellants, and the first three appellants guaranteed the loan to the fourth named appellant. These were supported by legal charges over the properties referred to in the loan offer letters.
6. There were limited recourse terms in the agreement. These are set out in paragraphs 10 and 11 of the loan agreement. These provide:-
"10. Financial Covenants
(b) In the event that there is a breach of the Bank's requirements set out at subclause (a) hereof, the Borrowers shall either:-
(i) within four weeks of being called upon by the bank to do so pay (or procure payment) to the Bank such amount as would result in the total of such indebtedness not exceeding the Specified Percentage or
(ii) furnish to the Bank as soon as possible after they are requested to do so that in any event no later than four weeks from the date of such request such additional security acceptable to the Bank and its Solicitors (acting reasonably) as may be required by the Bank to ensure that the total amount of such indebtedness does not exceed the Specified Percentage
(iii) the Borrowers further agree to provide evidence of title to the Bank which is satisfactory to the Bank's Solicitors (acting reasonably) in relation to such additional security
(c) For the avoidance of any doubt the Borrowers acknowledge that the Bank will be entitled to call for valuations of the said properties at any time throughout the term of this loan as often as it may choose for the purposes of determining whether or not there has been a breach of the Bank's requirements as set out at subclause (a) hereof. The Bank shall be entitled to call for not more than four such valuations to be carried out at the Borrowers' expense. All (if any) further such valuations shall be carried out by a reputable valuer who shall in default of agreement between the Bank and the Borrowers be nominated by the Borrowers from a list of at least three reputable valuers to be furnished by the Bank to the Borrowers for such purpose. The written valuation of any such valuer shall (save in the case of manifest error) be conclusive and binding on both the Bank and the Borrowers.
Paragraph 11(a) of the loan agreement provides:-
The Bank has agreed with the Borrowers that provided the Borrowers comply with their obligations as set out in paragraph 10(b) hereof and pay all interest due to the Bank pursuant to this Facility Letter the Bank's recourse will be limited to the respective interests in the properties detailed in paragraph 6 hereof. Accordingly:-
(Durkan New Homes and Casey Loan Agreement)"
8. On the 30th September, 2008 the appellants discharged all interest due, and claimed to be entitled to rely on the limited recourse provisions of the agreements.
9. The bank delivered a letter after close of business on the 30th September, 2008 referring to a recent valuation of the property held as security of €45 million and called upon the appellants to reduce their indebtedness. The bank sought to invoke the provisions of paragraph 10(b) of the Loan Agreements. The letter contained the following:-
We refer to facility letter dated 22nd February 2006 and in particular to Clause 10. As you are aware from recent discussions with the Bank, valuation of the property held as security under Clause 6 has been undertaken on our behalf by CB Richard Ellis dated 2nd of July 2008. The final valuation report was received by the Bank and dated the 26th September 2008.
This valuation gives a market value of Euro 45 million and in accordance with Clause 10 of the facility letter we formally request the Borrowers to reduce the current aggregate indebtedness of Tullycross Developments Ltd and the Borrowers to Euro 31,500,000
In a further letter the bank sought repayment of the loans in full.
10. It was submitted by the appellants that the valuation contemplated by paragraph 10(c) of the Loan Agreements in final form was only received by the appellants after the close of business on 30th September, 2008, and was outside the term of the loan and that therefore the bank's right of payment of the loans under the Loan Agreements was, according to paragraph 11, limited to the properties specified in paragraph 6 of the Loan Agreements. It was submitted that the operation of paragraph 10(b) (which limited the application of the recourse provisions in paragraph 11) was expressly stated to be subject to paragraph 10(a). It was also submitted that in light of the wording of 10(c) it was clearly envisaged that the operation of paragraph 10(a) was conditional upon the obtaining of the valuation. In the bank's letters dated 30th September, 2008 the bank linked the ability to determine a breach of paragraph 10(a) to the obtaining of the valuation. Thus, it was submitted, for the purposes of excluding the appellants' right to rely on the limited recourse provisions of paragraph 11, the provisions and procedures of paragraph 10 had to be construed in accordance with their terms, namely the delivery of a written valuation in final form and the giving by the bank to the appellants of notice as contemplated in paragraph 10(b) of the Loan Agreements during the terms of the loans.
11. Apart from issues on the construction of the agreement the appellants raised the issue of banking hours and normal banking practice. The appellants submitted that the expression "term of loan" equates to the period as from the date of drawdown to the Repayment Date, i.e. 30th September, 2008, and that in accordance with normal banking practice this would mean the close of banking business on the 30th September, 2008. It was submitted that if a borrower made a payment of principal after the close of business on a repayment date that the payment would constitute a breach of a loan agreement on the grounds that payment had not been made on the relevant repayment date, but was late. It was submitted that logically the duration of any other obligations under a loan agreement had a similar life. It was submitted that the appellants having discharged their obligations to pay interest in full up to the Repayment Date, which was admitted by the bank, the Loan Agreements cease to be executing contracts. As the Loan Agreements made a provision for the discharge by the appellants of their obligations, by the properties in paragraph 6, it was submitted that the bank has no right of personal recourse against the appellants, and the bank was not entitled to invoke the provisions of paragraph 10 after the Repayment Date. It was submitted, if the appellants had elected to repay the loan on the Repayment Date it would have had to be done by close of business on the 30th September, 2008. If the appellants elected to rely on the limited recourse provisions of paragraph 6 the payment of any outstanding interest had to be done prior to the close of business on the 30th September, 2008. The appellants did so elect and paid the outstanding interest prior to the close of business on the 30th September, 2008, at a time when the bank had not served any notice under paragraph 10(b) on the appellants.
"Upon the hearing of any such motion by the Court, the Court may give judgement for the relief to which the plaintiff may appear to be entitled or may dismiss the action or may adjourn the case for plenary hearing as if the proceedings had been originated by plenary summons, with such directions as to pleadings or discovery or settlement of issues or otherwise as may be appropriate, and generally may make such order for determination of the questions in issue in the action as may seem just."
14. Several cases were opened before the Court which have addressed this jurisdiction. These included Bank of Ireland v. Educational Building Society  1 IR 220 where Murphy J. emphasised that it was appropriate to remit a matter for plenary hearing to determine an issue which is primarily one of law where a defendant identified issues of fact which required to be explored and clarified before the issues of law could be dealt with properly. He stated at p.231:-
"Even if the position was otherwise, once the learned High Court Judge was satisfied that the defendant had "a real or bona fide defence", whether based on fact or on law, he was bound to afford them an opportunity of having the issued tried in the appropriate manner."
15. In Aer Rianta c.p.t. v. Ryanair Limited  4 IR 607, Hardiman J. reviewed Irish cases and concluded at p.623:-
"In my view, the fundamental questions to be posed on an application such as this remain: is it “very clear” that the defendant has no case? Is there either no issue to be tried or only issues which are simple and easily determined? Do the defendant’s affidavits fail to disclose even an arguable defence?"
16. In McGrath v. O'Driscoll  1 ILRM 203, Clarke J. described the law as follows, at p.210:-
"So far as questions of law or construction are concerned the court can, on a motion for summary judgment, resolve such questions (including, where appropriate, questions of the construction of documents), but should only do so where the issues which arise are relatively straightforward and where there is no real risk of an injustice being done by determining those questions within the somewhat limited framework of a motion for summary judgment."
17. Thus the issue in this appeal is whether the appellants have satisfied the Court that they have an arguable defence.
18. Having quoted relevant cases the learned trial judge held that:-
"If the addition of evidence can assist in any material way in the construction of a document then, I agree, the matter should be put for plenary hearing. If, on the other hand the question of law arising on affidavit evidence can be as well considered on a motion for summary judgment as at a plenary hearing, then I feel it is the obligation of the court to resolve it on hearing that motion. In Cow v. Casey,  1 KB 474, the issue before the Court of Appeal was whether the High Court ought to have given summary judgment where a complex issue arose concerning the statutory rights of a tenant. Lord Greene M.R. in accordance with the approach in our jurisdiction has emphasised a very cautious line in entering summary judgment in any case. As to a controversy of law, he had this [to] say, with which I agree:-
19. The learned High Court judge appeared to find that if a question of law arose it was the obligation of the trial court to resolve the matter on the hearing of the motion. He stated at paragraph 17:-
"If the addition of evidence can assist in any material way in the construction of a document then, I agree, the matter should be put for plenary hearing. If, on the other hand the question of law arising on affidavit evidence can be as well considered on a motion for summary judgment as at a plenary hearing, then I feel it is the obligation of the court to resolve it on hearing that motion."
20. While a court may resolve questions of law there is no obligation to do so. The test, as stated previously, is whether the appellants have established an arguable defence.
21. This was a contract specifically negotiated between the parties. There is a factual matrix.
22. As stated in Banque de Paris v. de Naray  Lloyds' Rep. 21, by Acker L.J. at p.23:-
"It is of course trite law that O.14 proceedings are not decided by weighing the two affidavits. It is also trite that the mere assertion in an affidavit of a given situation which is to be the basis of a defence does not, ipso facto, provide leave to defend; the Court must look at the whole situation and ask itself whether the defendant has satisfied the Court that there is a fair or reasonable probability of the defendants having a real or bona fide defence."
23. I am satisfied that the appellants have an arguable defence on the construction of the documents. Also, there is the factual issue of the extent of banking hours, and its application, if any.
24. In this matter the issues to be tried are not simple and clear. I am satisfied that the appellants have shown that they have an arguable defence. In all the circumstances, as a matter of justice, the case should be heard at a plenary hearing.
25. In the circumstances I make no observations, nor should any be inferred, on the second issue – the substantive issue.