Danske Bank A.S. (t/a Danske Bank) -v- Macken & anor [2017] IECA 117 (05 April 2017)

Danske Bank A.S. (t/a Danske Bank) -v- Macken & anor [2017] IECA 117 (05 April 2017)

The High Court erred in refusing to consider the set aside application under Order 36, Rule 33 on the basis of functus officio; the application should have been considered on its merits as the rule provides a specific jurisdiction to set aside judgments obtained in the absence of a party due to accident or mistake.

Citation
[2017] IECA 117
Parties
Plaintiff/respondent: Danske Bank A. S. (trading as Danske Bank); Defendant/appellant: Michael Macken; Defendant/appellant: Patricia Watson
Jurisdiction
Ireland
Judgment Date
05 April 2017
Procedural Posture
Civil Appeal / Appeal From High Court Refusal to Entertain Set Aside Motion
Outcome
appeal allowed
Legal Topics
Set Aside Judgment, Functus Officio, Order 36 Rule 33, Estoppel by Election
Civil Procedure Set Aside Judgment Functus Officio Order 36 Rule 33 Estoppel by Election

Case Brief

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Parties

Danske Bank A. S. (trading as Danske Bank)

Plaintiff/respondent

Michael Macken

Defendant/appellant

Patricia Watson

Defendant/appellant

Procedural Posture

Civil Appeal / Appeal From High Court Refusal to Entertain Set Aside Motion

Legal Issues

  1. 1 Whether the High Court was correct in refusing to entertain a set aside application under Order 36, Rule 33 on the basis of functus officio
  2. 2 Whether the defendants were estopped by election from seeking to set aside the judgment after appealing

Ratio Decidendi

The High Court erred in refusing to consider the set aside application under Order 36, Rule 33 on the basis of functus officio; the application should have been considered on its merits as the rule provides a specific jurisdiction to set aside judgments obtained in the absence of a party due to accident or mistake.

Court Disposition

appeal allowed

Orders

  • Matter remitted to the High Court to consider and determine the application to set aside the judgment of 2nd November 2015 under Order 36, Rule 33 on its merits.