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Cite as: [2014] IESC 6
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Judgment Title: Ellen Construction Ltd (In Receivership): Wallace -v- Fortune & anor Neutral Citation: [2014] IESC 6 Supreme Court Record Number: 406/11 High Court Record Number: 2010 519 COS Date of Delivery: 18/02/2014 Court: Supreme Court Composition of Court: Murray J., Fennelly J., Clarke J. Judgment by: Clarke J. Status of Judgment: Approved |
THE SUPREME COURT [Appeal No: 406/2011] Murray J. Fennelly J. Clarke J. In the matter of Ellen Construction Limited (In Receivership) and In the matter of Section 316 of the Companies Act 1963 and In the matter of the Companies Act 1963 to 2009
KIERAN WALLACE, RECEIVER OF ELLEN CONSTRUCTION LIMITED (IN RECEIVERSHIP) Applicant/Respondent and
MICHAEL FORTUNE AND CYRIL BARDEN Respondents/Appellants 1. Introduction 1.1. It has often been commented, frequently with some significant justification, that the legal measures normally required to be put in place in the context of property and lending transactions were casualties of the boom associated with the Celtic Tiger. Sometimes essential elements of the legal arrangements necessary were just not put in place. However, short of those extreme situations, there were many more cases where arrangements were not specified with sufficient clarity. Those involved in business are wont to complain when lawyers seek to have arrangements fully analysed and set out clearly in documentary form. When things go wrong, of course, lack of clarity in the relevant arrangements makes it much easier for disputes to arise, thus leading to litigation. 1.2. This case is of that latter type. It is clear that some form of arrangement was entered into involving the respondents/appellants (respectively “Mr. Fortune” and “Mr. Barden”) and Ulster Bank Ireland Limited (“Ulster Bank”), who was a lender both to a partnership of which Mr. Fortune and Mr. Barden were part and to the company named in the title of these proceedings (“Ellen”) of which the applicant/respondent (“the Receiver”) has been appointed as Receiver. There is, however, a significant dispute as to the precise nature of the arrangements entered into. The principal issue of substance which arises on this appeal is as to the legal rights and obligations of the parties arising out of the arrangements entered into. There is in addition a purely legal question concerning jurisdiction. The dispute was resolved in the High Court in favour of the Receiver (Wallace v. Fortune & Another [2011] IEHC 430). Mr. Fortune and Mr. Barden have appealed to this Court. In order to understand the precise issues which arise, it is necessary to say something about the factual backdrop. 2. The Factual Background 2.2. An arrangement was entered into between Richmond and Ellen which was of a type not untypical in the construction industry in Ireland. Richmond, having bought the relevant lands, granted a licence to Ellen which enabled Ellen to go onto the lands at Clearwater Cove to construct houses. When any particular house had been constructed and sold the arrangement provided that Richmond would execute an appropriate form of deed to transfer ownership of the property to the purchaser. As part of the arrangement a “site fine” of €162,000 was to be paid to Richmond (from the overall sale price) with the balance of whatever price could be secured from the purchaser being paid to Ellen. 2.3. The building works carried out by Ellen were also the subject of finance from Ulster Bank. Ulster Bank was, therefore, a lender to both Richmond and Ellen. However, Richmond and Ellen had their own separate banking arrangements although there was a connection between those banking arrangements to which it will be necessary to refer in due course. Those separate arrangements required certain monies to be repaid out of, so far as Richmond was concerned, the site fines, and so far as Ellen was concerned, the remainder of the purchase price. 2.4. The lands had been purchased by Richmond in 2003 and the building licence agreement was entered into by Richmond and Ellen on the 19th May, 2005. That agreement provided for the construction of a residential development consisting of 45 units. It appears that by the end of March, 2009, 33 of the units had been sold. 2.5. The arrangements had worked sufficiently well so that the entirety of Richmond’s indebtedness to Ulster Bank had been discharged before any difficulty was encountered. It should, however, also be noted that Richmond had agreed to guarantee Ellen’s debts as part of the arrangements whereby Ellen borrowed funding for the construction. Thus while, by January 2009, Richmond did not owe anything to Ulster Bank in its own right, it did have a contingent liability to the bank in the event that Ellen proved unable to finally repay its liabilities. 2.6. It is also of some relevance to note that there was a separate, and larger, development in which all of the players had an interest taking place at a location called East Wall. The broad scheme of arrangement involving Richmond, Ellen and Ulster Bank was the same although the details were different. 2.7. However, as the property market began first to weaken and then suffer a disastrous reversal, the prospects for the development at Clearwater Cove became less clear. Discussions took place between some of the interested parties as to whether there might be any alteration in the precise terms of their arrangements. It will be necessary, in due course, to return to the precise state of play immediately before any discussions took place. However, one important aspect of the backdrop is, of course, that there was no exact community of interest between Richmond and Ellen, for while Michael and Martin Doran were both partners in Richmond and principals of Ellen, Mr. Fortune and Mr. Barden did not have any direct interest in Ellen itself. It was also, of course, the case that Mr. Fortune and Mr. Barden had an indirect interest in seeking to ensure that Ellen did not run into insurmountable difficulties for their own position, as the part owners of lands in respect of which Ellen had a licence and had engaged in building works with some properties remaining unsold, had the potential to be significantly complicated if Ellen ran into such insurmountable difficulties. On the other hand, Mr. Fortune and Mr. Barden had a much more direct interest in ensuring that Richmond got everything it was entitled to, for they, as two of the partners, would benefit from any payments made to Richmond. 2.8. It is against that backdrop that discussions which took place in the early part of 2009 need to be assessed. In that context it is important to note that the relevant discussions were conducted on behalf of Ulster Bank by a Mr. P. J. McIntyre with a Mr. David Sheeran, the financial controller of Ellen. It is common case that no discussions took place directly between either Mr. Fortune or Mr. Barden, on the one hand, and anyone from Ulster Bank on the other. A meeting took place between Mr. McIntyre and Mr. Sheeran on the 20th January, 2009. In late March, in circumstances which it will be necessary to analyse in more detail, an email exchange followed by hardcopy correspondence occurred. At the end of that correspondence, a letter, of the 7th April, 2009, was written by Mr. McIntyre to Mr. Barden and Mr. Fortune which is very short and which I will quote in full:-
Re: Ellen Construction Ltd Debt €2.585m on Clearwater Cove Development I confirm the Bank will release its charge over house numbers 10, 20 & 41 in the above development provided our debt is reduced to €2m. I further confirm that the liability of Cyril Barden & Michael Fortune on foot of their existing guarantees in favour of Ellen Construction Ltd, in respect of the above development, is limited to their interest in the Clearwater Cove site.” 2.9. However, it is also important to note one aspect of what happened subsequently. Ulster Bank arranged for the Receiver to be appointed. The Receiver ultimately brought an application under s. 316(1) of the Companies Act 1963, as amended, seeking a direction to the effect that Ulster Bank had not released its security in respect of some of the properties at Clearwater Cove, being specifically house numbers 10, 20 and 41 (the houses mentioned in Mr. McIntyre’s letter). It was that application which was successful before Murphy J. in the High Court and against which Mr. Fortune and Mr. Barden appeal to this Court. Against that backdrop, it is necessary to identify the precise issues which arise on this appeal. 3. The Issues 3.2. In the context of that issue, it should also be noted that there was correspondence from solicitors for Mr. Fortune and Mr. Barden in the run up to the hearing in the High Court which, it is accepted, amounted to an agreement that the vehicle of a s. 316 application could be used to resolve these issues. Counsel for Mr. Fortune and Mr. Barden argued in the High Court, and argued again in this Court, that, notwithstanding such an agreement, the court nonetheless did not have jurisdiction for, it is said, a jurisdiction which does not exist cannot be conferred by agreement. While not putting it quite in this way, counsel fairly conceded that, if the jurisdiction was one which was capable of being conferred by agreement, then there was a sufficient agreement on the facts of this case to confer jurisdiction. 3.3. Assuming that there be jurisdiction, the remaining and substantive issue is as to whether the arrangements, however characterised, that occurred between January and April, 2009, amounted to a release of any security which Ulster Bank had over the three houses in question. The starting point, of course, is that, taking the letter of the 7th April on its own, Ulster Bank had confirmed that it would release its charge in respect of those houses provided that their debt “is reduced to €2m”. It is common case that the debt was at some stage reduced to €2m. On that basis, and taking the letter by itself, it would seem clear that the security should be taken to be released. 3.4. However, Ulster Bank argues that the evidence demonstrated (as the trial judge accepted) that the arrangement entered into between Mr. McIntyre and Mr. Sheeran was more complex. At the time of those arrangements there were twelve houses in the development which remained unsold. Mr. McIntyre said in affidavit evidence that he agreed with Mr. Sheeran that, provided the debt was reduced to €2m (by whatever means) and provided that Ulster Bank retained its security over the remaining nine properties (that is the twelve properties less the three which were to be released) the terms of the letter were to apply. On that basis it is said that it was not permissible to reduce the debt to €2m simply by selling some of the nine properties which, on Ulster Bank’s case, were meant to remain as security for the continuing bank debt of €2m. In essence, those are the competing positions. It is argued on behalf of Mr. Fortune and Mr. Barden that the letter of the 7th April does, as it were, what it says on the tin. It is argued on behalf of Ulster Bank that the true agreement is, as the trial judge found on the evidence it to be, the one as asserted on behalf of Ulster Bank. 3.5. In that context it is important to note that the proceedings were, in the main, heard on affidavit with Mr. Barden being subjected to cross-examination on behalf of Ulster Bank on his affidavit evidence. Mr. McIntyre was not cross-examined. No evidence, whether affidavit or otherwise, was tendered by either party from Mr. Sheeran. On that basis the only evidence as to what happened at the meeting between Mr. McIntyre and Mr. Sheeran was the affidavit evidence of Mr. McIntyre which went unchallenged. 3.6. However, it seems clear that the substantive issue should only be addressed by this Court if there is jurisdiction to entertain these issues at all in the context of a s. 316 application. I, therefore, turn first to that question. 4. Is There Jurisdiction? 4.2. That leads to an analysis of the relationship between Richmond and Ellen deriving from the licence agreement to which reference has already been made. As pointed out, that arrangement permitted Ellen not only to go onto the lands at Clearwater Cove and construct houses on those lands but also to sell the houses concerned provided that a site fine in the agreed sum was paid to Richmond. By the time the discussions in 2009 occurred, it would appear that all of the houses had, in fact, been constructed. The position was, therefore, that the legal ownership of those houses remained in Richmond but that Ellen had an entitlement, by virtue of the licence, to sell those houses and procure that, subject to paying the site fine, the entire purchase price should be paid to Ellen. Reliance is placed by the Receiver on the judgment of Blayney J. in the Supreme Court in Naughton v Naughton (Unreported, Supreme Court, 9th November 1993) to support the proposition that a licensee, in an arrangement such as that, has an interest in the lands. At pp. 10-11 of that judgment, Blayney J. cited the following passage from the Modern Law of Real Property (10th edition) by Cheshire as correctly setting out the relevant legal principle:
4.4. It should be noted that, as part of its own security arrangements with Ulster Bank, Ellen assigned to Ulster Bank its interest in the licence which it held over the lands at Clearwater Cove. It follows that the property over which the Receiver was appointed included the interest of Ellen in that licence for that licence was part of the property of Ellen which had been secured in favour of Ulster Bank. In that context, it is important to note the precise relief sought on behalf of the Receiver. 4.5. The principal direction sought is that set out at paragraph 1 of the Notice of Motion which is in the following terms:-
B. debenture dated 8 February 1999 (the “Debenture”) and made between (1) the Company and (2) Ulster Bank Limited (which Debenture was transferred to the Bank pursuant to the provisions of Statutory Instrument 365/2001); and/or C. deed of mortgage and charge dated 12 September 2003 between (1) Michael Fortune, Cyril Barden, Michael Doran and Martin Doran and (2) the Bank in respect of Folio 21830 Co. Wexford and Folio 759F Co. Wexford together with ALL THAT AND THOSE the part of the lands at Mauritius Town, contained two roves and fourteen purches or thereabouts, statute measure, situate in the town land of Mauritius Town, part of Rosslare, Co. Wexford as more particularly delineated and described on the plan or map attached to indenture of conveyance dated 29th day of February 1988 made between the Fishguard and Rosslare Railways and Harbours Commission on the one part and John E. Synnott of the other part.” 4.7. The substance of the position maintained on behalf of Mr. Fortune and Mr. Barden, both in correspondence prior to the Receiver seeking a direction in that form, and at the hearing both before the High Court and on appeal in this Court, is that, as a result of the arrangements entered into in the earlier part of 2009, Mr. Barden and Mr. Fortune are entitled to sell the three specified houses for their own benefit. In order for that to be so, it would follow that, not only would Ulster Bank’s security over those lands, held as a result of the Deed of Mortgage and Charge between Richmond and Ulster Bank, require to have been released, but the interest of Ulster Bank in the licence given to Ellen by Richmond would also have to have been released. If that latter interest were not released then, of course, Ellen would be entitled to all of the sale price other than the site fine. It follows that, in order for the position asserted by Mr. Fortune and Mr. Barden to be correct, a court would have to be satisfied, amongst other things, that the interest of Ellen in the three specified houses had also been released through an agreement on the part of Ulster Bank and Ellen, for, in the absence of such an arrangement, Mr. Fortune and Mr. Barden would not be able to sell the houses for their own benefit. 4.8. It follows that an essential issue arising on the specific dispute between the parties is as to whether Ellen’s interest under the licence in the three specified houses was released as part of the arrangements entered into, for in the absence of such a release the position asserted on behalf of Mr. Fortune and Mr. Barden could not be correct. It follows, in turn, that the directions sought by the Receiver concern the interests of Ellen in the lands and not just the interest of Ulster Bank, for Ulster Bank’s interest in the licence agreement could only subsist as long as Ellen’s interest in that licence agreement also continued to subsist. Likewise, clearing Ulster Bank’s direct mortgage over the lands would not be sufficient to establish the entitlement which Mr. Fortune and Mr. Barden asserted, for there would remain Ellen’s interest on foot of the licence agreement and Ulster Bank’s security, by way of assignment, over that interest of Ellen. A central feature in the position which had to be adopted on behalf of Mr. Fortune and Mr. Barden was, therefore, that Ellen’s interest, by way of the licence agreement, in the three specified houses, had disappeared. That assertion clearly involves a direct question concerning the property interests of Ellen and is, on that basis, in my view, clearly within the scope of the type of application which can properly be brought under s. 316. 4.9. I would, therefore, reject the assertion made on behalf of Mr. Fortune and Mr. Barden that the directions sought on behalf of the Receiver are outside the scope of the type of application properly brought under s. 316. It follows that it is necessary to turn to the substantive issue. 5. The Substantive Issue 5.2. The case made in evidence before the High Court on behalf of Mr. Fortune and Mr. Barden suggested that they had become involved in discussions with Ellen with a view to seeking the complete release of three houses (then not, perhaps, particularly specified) in return for which, it was said, Mr. Fortune and Mr. Barden would agree that Richmond would not be any longer entitled to receive site fines in respect of the sale of any of the remaining properties. The underlying commercial arrangement, on the case made by Mr. Fortune and Mr. Barden, was that the ability of Ellen to obtain the full purchase price from the remaining nine properties was seen to be of considerable assistance to Ellen in putting forward a viable survival scenario. Clearly both Michael and Martin Doran had a significant interest in securing Ellen’s survival and might well, in that context, have been happy to waive their portion of any site fine in their capacity as partners in Richmond. However, as already noted, Mr. Fortune and Mr. Barden only had an indirect interest in the survival of Ellen and, from their perspective, getting three houses clear for their own benefit was seen as the quid pro quo for waiving Richmond’s entitlement to a site fine. It is, perhaps, worthy of some note that the value of the site fines on the twelve houses which remained unsold at the time in question would appear to have been of the order of €1.944 million, so that Mr. Fortune and Mr. Barden’s interest in those site fines would appear to have had a value of €972,000. On the other hand, it would seem that the perceived value of the houses around that time was something of the order of €300,000 or a little less so that three houses would be likely to have had a value somewhat under €900,000. 5.3. There is a further complication which needs to be noted which concerns the banking arrangements entered into between Ellen and Ulster Bank. Those arrangements required that Ellen repay the monies borrowed for Clearwater Cove by way of site fine to Ulster Bank. This arrangement was varied from time to time in respect of the fine amount and the number of sites to which it was applicable. The site fine appears to have varied between €135,000 and €274,105 per unit. However, given that a site fine of €162,000 also needed to be paid to Richmond by Ellen, it is hard to see how all of the legal obligations of the parties could have been met by a sale at the sort of prices likely to be secured at that time. A sale at or around €300,000 would be likely to produce net proceeds of somewhat less which just is not enough to meet the Richmond site fine (without which Richmond could, strictly speaking, refuse to close the sale) and Ellen’s obligations to Ulster Bank. 5.4. Be all that as it may, Mr. Barden’s evidence was that he entered into an arrangement with Mr. Sheeran to the effect that the site fines would be waived in respect of nine properties provided that a release could be secured in respect of the remaining three. It was accepted that such an arrangement would necessarily require the agreement of Ulster Bank for, for the reasons already analysed, the properties could not be released in such a way that Mr. Fortune and Mr. Barden could sell them for their own benefit without Ulster Bank’s agreement. 5.5. Thereafter, there were discussions between Mr. Sheeran and Mr. McIntyre which, according to the evidence, took place on the 20th January. There was no evidence to suggest that the question of the release of the site fines was discussed at that meeting less still was the subject of any agreement. Mr. McIntyre gave affidavit evidence that, while he was aware that there were discussions between Richmond and Ellen, he was unaware of the precise details. Mr. McIntyre also gave affidavit evidence that it was understood between Mr. Sheeran and himself that the sum of €2 million (to which the indebtedness of Ellen was to be reduced) was to be secured on the nine remaining units. As pointed out earlier, Mr. McIntyre was not cross-examined and thus his evidence was not in any way challenged. Nor did Mr. McIntyre suggest in a second and replying affidavit that there was any discussion beyond the issues identified in his first affidavit. 5.6. On that basis it seems to me that the trial judge had no option but to conclude that, on the facts, the arrangements entered into between Mr. Sheeran and Mr. McIntyre were as asserted by Mr. McIntyre. 5.7. In any event, nothing further occurred of any materiality until Mr. Sheeran sent an email on the 27th March to Mr. McIntyre asking for confirmation that Ulster Bank was “willing to release units numbers 10, 20 and 41 subject to our reducing the current work in progress loan down to €2,100,000”. In a replying email of the 31st March, Mr. McIntyre referred to the fact that he had found his notes of the earlier meeting. He said that the agreement was “to release three units if debt reduced to €2 million”. On the same day, a hardcopy letter, in similar form, was written to Mr. Sheeran. 5.8. Mr. Barden gave evidence that he was not satisfied with that letter for two reasons. First, it was not a letter addressed to him or Mr. Fortune. Second, it made reference to a telephone conversation and he was, he said, anxious that there be no element of potential conditionality. Thereafter, a second letter was sent directly to Mr. Barden and to Mr. Fortune, on the 7th April, in the form already referred to. 5.9. The High Court was, therefore, faced with a difficult situation. On the only available evidence, the actual agreement entered into between Mr. Sheeran and Mr. McIntyre on behalf of Ulster Bank was the agreement now asserted by Ulster Bank. On the other hand, Ulster Bank did write a letter to Mr. Barden which specifies arrangements which are consistent with the agreement which Mr. Fortune and Mr. Barden now allege governed the legal relationships between the parties. As a result of those conflicting elements, it is necessary to analyse with some precision the legal consequences. 5.10. There are two possible ways of looking at any potential legally binding arrangements that may have been entered into at that time. First, it might be considered that there could have been a three way agreement whereby Richmond, Ellen and Ulster Bank all agreed to vary their legal arrangements in some specified way. Alternatively, it might be possible to view the situation as one in which there was an agreement between Richmond and Ellen to the effect that, if Ellen could procure the release of any security interest held by Ulster Bank on three properties, Richmond would cede its entitlement to a site fine in respect of the remaining nine properties in return for Mr. Fortune and Mr. Barden obtaining a release of any interest which either Ellen or Ulster Bank might have in the three properties. 5.11. Against that background, it is necessary to look at the letter of the 7th April. The case made on behalf of Mr. Fortune and Mr. Barden is, as has been pointed out, straightforward. It is noted that the letter does not suggest that there is any condition attaching to the reduction of the indebtedness of Ellen to €2 million which required that reduction not to arise out of the sale of the nine remaining properties. The argument presented on behalf of Mr. Fortune and Mr. Barden was that that letter represented a clear and unambiguous agreement which should be interpreted as binding the parties to its terms. However, it seems to me that the problem with that argument is that, on any view, the letter does not encompass all of the terms agreed. Unless Ulster Bank was getting something in return, then there was no consideration for Ulster Bank’s release of security. It was for that reason that it was essential, from the point of view of Mr. Fortune and Mr. Barden, that the overall agreement involved a release by Richmond of its entitlement to obtain a site fine on the sale of the remaining nine properties because that release would operate both for the benefit of Ellen (who would get the full purchase price) and Ulster Bank (who would have a much better chance of having Ellen’s indebtedness cleared). But there is no mention of any arrangement concerning the release of site fines in the letter of the 7th April or, indeed, in any other contemporaneous documentation whether emanating from Ulster Bank, Ellen or, most importantly, Richmond or Mr. Fortune and Mr. Barden. 5.12. It is clear, therefore, that the letter of the 7th April cannot, on any view, encompass the entire arrangements between the parties, whether they are viewed as tripartite or interlocking two party arrangements. The letter does not specify the agreement which Mr. Fortune and Mr. Barden assert was in place. Neither does the letter specify fully the agreement which Ulster Bank says was in place. Both sides are required to go behind the terms of the letter in order to specify the full extent of the arrangements which they assert were in place. 5.13. It seems to me to follow that Mr. Fortune and Mr. Barden cannot simply rely on the terms of the letter as encompassing the entirety of the arrangements between the parties for it does not encompass such full terms even on their own case. On their case they have to go behind the letter. 5.14. Given that it is not possible, therefore, to rely on the letter as encompassing the full terms of the arrangements between the parties, it is necessary to have regard to the discussions between Mr. McIntyre and Mr. Sheeran. On the basis of the only available evidence as to those discussions (which went unchallenged), the only agreement which Ulster Bank entered into was one on the terms it asserts. Given that it is necessary to go behind the letter, then, the Court is faced with one of two scenarios. On one view there might be no true agreement in any event. That could be so either because, if viewed as a tripartite arrangement, the three parties were never ad idem or, if viewed as a set of interlocking two party agreements, Ellen never secured the type of release which it was required to secure in order to complete its specific arrangement with Mr. Fortune and Mr. Barden. 5.15. Alternatively, there might be an agreement between Ellen and Ulster Bank in the terms asserted by Mr. McIntyre but that agreement never came into effect because a point was never reached where €2 million remained outstanding with the benefit of security over nine properties. 5.16. None of those scenarios allows Mr. Fortune and Mr. Barden to assert that there was a legally binding arrangement which required the release both of Ulster Bank’s security directly over the three relevant houses at Clearwater Cove and Ellen’s interest in those lands through the licence arrangement coupled with Ulster Bank’s security over that licence arrangement. In order to achieve that situation, it would be necessary for Mr. Fortune and Mr. Barden to establish that there was an agreement, whether tripartite or arising out of a set of interlocking two party arrangements, which involved Ulster Bank releasing its two interests in the three specified houses at Clearwater Cove and allowing Ellen to release its interest in the relevant properties, in return for a waiver of Richmond’s entitlement to site fees on the remaining properties. There is no written agreement to that effect. There is no evidence of any oral agreement by Ulster Bank to such an arrangement. There is, therefore, just no evidence on which the High Court could have concluded that such an arrangement was put in place in a manner which bound Ulster Bank. For those reasons it seems to me that the trial judge was correct in his conclusions. 5.17. It should, however, be noted that, as suggested at the very beginning of this judgment, much of the difficulty in this case stems from the fact that a letter was written on behalf of Ulster Bank which, on Ulster Bank’s own case, does not represent a complete account of the arrangements entered into. It is particularly unfortunate (but sadly far from unusual in recent times) that this should be so. That this litigation has ensued is, in my view, in no small part due to the failure of Ulster Bank to clearly specify the precise terms of any arrangement which, on its view, had been agreed. That is all the more important where the letter was addressed to someone who was not present at the negotiations. 5.18. Indeed, I would go so far as to suggest that, if the letter of the 7th April had made reference to the fact that the benefit to both Ellen and, in particular, Ulster Bank, from the arrangement was to be a waiver by Richmond of the site fines on the remaining nine properties, the result of this case might well have been different. In those circumstances, the letter would encompass the entire terms of the agreement said to have been entered into by Mr. Fortune and Mr. Barden. That would then have placed a heavy onus on Ulster Bank in seeking to go behind an arrangement which it had, apparently, signed up to in the form of that letter. 5.18. Finally, it should be noted that the only case made on behalf of Mr. Fortune and Mr. Barden was one in contract. No suggestion of promissory estoppel was sought to be relied on in argument. 6. Conclusions 6.2. I am also satisfied that the trial judge was correct in concluding that there was no established agreement such as bound either Ellen or Ulster Bank to release their interest in the three houses, the subject matter of the application. 6.3. For those reasons I would dismiss the appeal and affirm the order of the trial judge.
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