Monday 20 November 2017

Two brothers lose bid to stop sale of assets following €17.6m judgement against them

Mr Justice Brian McGovern rejected arguments by Paul and Gerard Dormer
Mr Justice Brian McGovern rejected arguments by Paul and Gerard Dormer

Two brothers have lost their bid to stop receivers selling their assets after Allied Irish Banks (AIB) obtained a €17.6m judgment against them.

Mr Justice Brian McGovern rejected arguments by Paul and Gerard Dormer the €17.6m judgment granted against them in March 2014 should be vacated.  

They argued this was due to AIB's alleged failure to properly complete a January 2014 settlement agreement under which they had agreed to the judgment provided specific conditions were met by the bank.

On foot of his decision, the judge lifted interim injunctions restraining receivers appointed by AIB over various assets of the brothers dealing with those assets and taking steps to sell them.

The brothers, with addresses at Fortrose Park, Templeogue, Dublin and Rathdown Park, Terenure, Dublin, brought proceedings against AIB and receivers Luke Charleton and Marcus Purcell, of Ernst & Young.

They alleged the January 2014 agreement required three named AIB representatives to make a "recommendation" to its area credit committee concerning credit facilities for them.

They later learned from a data protection request the representatives provided some negative information about them to the committee which made a rejection of the facilities inevitable, the brothers claimed.

The case arose after AIB in early 2014 sought summary judgment against the brothers.

An agreement was reached in late January 2014 on terms including their consent to judgment on conditions including the recommendation to the area committee.

The matter was adjourned to allow implementation of the agreement and came before Mr Justice Peter Kelly in March 2014 when the brothers sought an adjournment to respond to issues in a bank affidavit.

 Mr Justice Kelly ruled the agreement was clear and the bank was entitled to judgment for €17.6m. That judgment was not on consent between the parties.

The brothers in late 2014 sought to have the judgment vacated after alleging AIB breached the settlement terms.

Dismissing their application to continue the injunctions, Mr Justice McGovern said he considered the terms of the agreement were "quite clear" and required the AIB representatives to make a recommendation to the area credit committee.

There was no guarantee the committee would accept the recommendation and it did not, he said.

This case was clearly designed to achieve the setting aside of the €17.6m judgment but the law clearly stated that nothing short of fraud, pleaded with sufficient particularly and established on the balance of probabilities, would amount to sufficient grounds to upset a previous court decision.

In this case, the brothers had clearly stated they were not alleging fraud and instead alleged they were induced to enter into the settlement on the basis of a misrepresentation.

The brothers had failed to show a fair issue to be tried at a full hearing, which was an essential ingredient for their application to continue the injunctions restraining the receivers, he said. 

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