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Cite as: [1998] IESC 47

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Boyle, A Bankrupt, In the Matter of [1998] IESC 47 (27th November, 1998)

THE SUPREME COURT

O’Flaherty J.,

Lynch J.,

Barron J.,

(10/96)

IN THE MATTER OF JOE BOYLE, A BANKRUPT

Judgment (ex-tempore) delivered on the 27th day of November, 1998, by O’Flaherty J.

This is an appeal brought from the judgment of the High Court, Murphy J. of 18th December, 1995, refusing Mr. Boyle’s application to have his adjudication as a bankrupt, which took place on 13th November, 1995, set aside on the basis, as we understand the submission made to the High Court judge and to us, that in some way it was the understanding of Mr. Boyle that the goods that he bought from Ardfert Quarry Products Ltd. were the debt of a limited company.

1. Mr. Carroll of Ardfert Quarry Products Ltd. in his affidavit set forth in the clearest terms, in paragraph 4, what the situation was. He swore and I quote from his affidavit:-

“I say that I was contacted by Mr. Boyle personally by telephone in or around January, 1990, when he explained that he needed building material for work to be done at his boatyard at Dingle, Co. Kerry. I was aware at the time that he was a director of a company or companies which would have had an involvement in

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the boatyard, but did not know the name of that company or exactly what interest it had in his business of running a boatyard. I was however aware that his company’s business was not going well at the time and hence I made it quite clear to him that the goods would be supplied to him personally, and invoiced to him personally, and not to any company of his. He accepted that this was the position, and the only basis on which goods would be supplied to him.”

2. There is no express disengagement from that position by Mr. Boyle in the course of his affidavit. He swore:-

“I have known Mr. O’Carroll for a number of years prior to the slipway being damaged as referred to above. I attended at the premises of Ardfert Quarry Products, on a date I am not too sure of but prior to the slipway being damage, to inspect steel, at Mr. O’Carroll’s invitation, that Ardfert Quarry Products had for sale at the time. Mr. O’Carroll, on this occasion, showed me around the quarry of Ardfert Quarry Products. I had a number of other meetings with Mr. O’Carroll, and various other businessmen, at in or around the time the slipway was damaged regarding proposals for commercial development of Dingle and Dingle Harbour area in particular. In addition, Mr. O’Carroll and Mr. Joe Doyle, also of Ardfert Quarry Products Limited, visited me at the boat yard in Dingle. I also participated, at Mr. O’Carroll’s invitation, in meetings with senior politicians and civil servants, at the highest level, regarding the proposals to develop the Dingle Harbour area. Mr. O’Carroll was well aware of the damage to the slipway and he is not correct in what he says at paragraph 4 of his affidavit. I met

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Mr. O’Carroll personally and, at all times, he was aware of the situation regarding the High Court case, and matters giving rise thereto, and was well aware that the goods being supplied were to assist in the temporary repair of the slipway and that the slipway and the High Court case were the property of Bádclós An Daingean Teoranta and not I personally.”

3. The learned trial judge had a number of things to say about that. He pointed out, in the first instance, that the judgment had been got in default of appearance back in 1991 and it was now too late to raise this matter. The first time it had been raised was in November 1995 during the course of the bankruptcy proceedings. The judge went on to say:-

“In relation to the affidavits there is a question relating to the correctness of fact. The evidence does not support the proposition that this was a company as opposed to a personal debt. It is clear that the creditor felt there was no misapprehension as to who he had been dealing with. He had insisted on dealing with Mr. Boyle personally. He had issued proceedings against the individual and had obtained judgment against him. It is significant that a judge of the Circuit Court had informed Mr. Boyle during the course of other proceedings that he had the right to review the judgment but Mr. Boyle had not exercised that right.”

4. I must conclude that this appeal is really unstateable and must be dismissed.

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5. Another serious aspect of this case is that a stay on this matter was granted by this Court on 22nd March, 1996, on the basis that Mr. Boyle would file a statement of affairs with the official assignee, and that unfortunately has not happened. He should attend to that without more ado because an undertaking should not lightly be given to this Court if it is not intended to honour it.