McGrath -v- O Driscoll & Ors [2006] IEHC 195 (14 June 2006)

McGrath -v- O Driscoll & Ors [2006] IEHC 195 (14 June 2006)

A guarantor who has not paid the principal creditor cannot obtain summary judgment for a liquidated sum against the principal debtor under Order 2; such claims are not properly brought by summary summons. Even if the proceedings were properly constituted, the defendants have established an arguable counterclaim arising from the same set of circumstances, which would provide a defence or set-off in equity.

Citation
[2006] IEHC 195
Parties
Plaintiff: Brendan McGrath; Defendant: Michael O'Driscoll; Defendant: Jim O'Driscoll; Defendant: Jim Duggan; Defendant: Dermot O'Mahoney; Defendant: John Buckley; Defendant: Michael Hurley; Defendant: Vincent Meade; Defendant: David Meade; Defendant: IASC Ltd.; Defendant: Michael Moran; Defendant: Aidan Moran; Defendant: Michael McKeown; Defendant: Louis Bourke; Defendant: BMCG (A1) Ltd.; Defendant: BMCG (A2) Ltd.; Defendant: John O'Dolan; Defendant: Padraig Connolly; Defendant: David Brosnan; Defendant: Noel Connellan
Jurisdiction
Ireland
Judgment Date
14 June 2006
Procedural Posture
Commercial Summary Proceedings / High Court Judgment on Motions for Summary Judgment
Outcome
Summary proceedings dismissed
Legal Topics
Summary Judgment, Guarantor Rights, Counterclaim and Set Off, Partnership Liability, Put and Call Option, Prematurity of Claim
Contract Law Guarantee/surety Law Civil Procedure Summary Judgment Guarantor Rights Counterclaim and Set Off Partnership Liability Put and Call Option +1 more

Case Brief

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Parties

Brendan McGrath

Plaintiff

Michael O'Driscoll

Defendant

Jim O'Driscoll

Defendant

Jim Duggan

Defendant

Dermot O'Mahoney

Defendant

John Buckley

Defendant

Michael Hurley

Defendant

Vincent Meade

Defendant

David Meade

Defendant

IASC Ltd.

Defendant

Michael Moran

Defendant

Aidan Moran

Defendant

Michael McKeown

Defendant

Louis Bourke

Defendant

BMCG (A1) Ltd.

Defendant

BMCG (A2) Ltd.

Defendant

John O'Dolan

Defendant

Padraig Connolly

Defendant

David Brosnan

Defendant

Noel Connellan

Defendant

Procedural Posture

Commercial Summary Proceedings / High Court Judgment on Motions for Summary Judgment

Legal Issues

  1. 1 Whether a guarantor can obtain summary judgment against principal debtors before payment to the principal creditor
  2. 2 Whether the proceedings are properly brought by summary summons under Order 2 of the Rules of the Superior Courts
  3. 3 Whether the defendants have an arguable counterclaim sufficient to provide a defence or set-off

Ratio Decidendi

A guarantor who has not paid the principal creditor cannot obtain summary judgment for a liquidated sum against the principal debtor under Order 2; such claims are not properly brought by summary summons. Even if the proceedings were properly constituted, the defendants have established an arguable counterclaim arising from the same set of circumstances, which would provide a defence or set-off in equity.

Court Disposition

Summary proceedings dismissed

Orders

  • Proceedings dismissed as not properly brought by summary summons under Order 2
  • If proceedings had been properly constituted, defendants would have been given liberty to defend on the basis of the counterclaim