Allied Distributive Merchants Ltd. v. Kavanagh & Anor [2002] IEHC 181 (1 February 2002)

Allied Distributive Merchants Ltd. v. Kavanagh & Anor [2002] IEHC 181 (1 February 2002)

The defendants failed to establish any fair or reasonable probability of a real or bona fide defence. The guarantee was not ambiguous or unenforceable due to the blank limitation clause; either a limitation existed or it did not, and no evidence of an agreed limitation was provided. Clause 3 of the guarantee...

Source-derived case information.

Citation
[2002] IEHC 181
Parties
Plaintiff: Allied Distributive Merchants Limited; Defendant: Brian Kavanagh; Defendant: Karen Kavanagh
Jurisdiction
Ireland
Judgment Date
01 February 2002
Procedural Posture
Summary Summons / Application for Liberty to Enter Final Judgment; Hearing on Leave to Defend
Outcome
application granted
Legal Topics
Guarantee Enforcement, Summary Judgment, Surety Liability, Variation of Contract Terms
Contract Law Commercial Law Guarantee Enforcement Summary Judgment Surety Liability Variation of Contract Terms

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Parties

Allied Distributive Merchants Limited

Plaintiff

Brian Kavanagh

Defendant

Karen Kavanagh

Defendant

Procedural Posture

Summary Summons / Application for Liberty to Enter Final Judgment; Hearing on Leave to Defend

Legal Issues

  1. 1 Whether the defendants have a fair or reasonable probability of a real or bona fide defence to the plaintiff's claim under a guarantee.
  2. 2 Whether the guarantee is ambiguous or unenforceable due to an incomplete limitation clause.
  3. 3 Whether the plaintiff's conduct in extending time or varying trading terms discharged the guarantors' liability.

Ratio Decidendi

The defendants failed to establish any fair or reasonable probability of a real or bona fide defence. The guarantee was not ambiguous or unenforceable due to the blank limitation clause; either a limitation existed or it did not, and no evidence of an agreed limitation was provided. Clause 3 of the guarantee expressly permitted the plaintiff to grant time or indulgence to the customer without affecting the guarantors' liability, and the extensions granted were within the scope of this clause. The defendants' construction of the guarantee would render it nugatory and was not supported by the facts or law.

Court Disposition

application granted

Orders

  • Defendants refused leave to defend.
  • Plaintiff granted liberty to enter final judgment for £211,134.32.