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No fair and reasonable probability of a bona fide defence established to judgment claim

By: Emma Foley BL

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High Court grant an order for summary judgment, on the grounds that: 1) the Defendant was not the appropriate party to raise the counterclaim sought to be relied on; 2) there was no corroborative evidence that the bank had entered into a joint venture with the company the Defendant had provided guarantees; for 3) the security documents were not invalid because the bank refused to advance the full sum under the facility; and 4) the allegations of negligence on the part of the receiver were mere assertions.

Summary Judgment - High Court - Fund sought summary judgment on foot of personal borrowings of the Borrower and personal guarantees given by Borrower for a company - Borrower was a director and shareholder in company – various facilities offered by the Fund’s predecessors – the Company sought loans for the purpose of purchasing and subsequently renovating a hostel site – Borrower alleged a counterclaim that the Banks’ had acted in breach of contract – One bank acted in breach of contract in refusing to advance money under a facility causing the sale of the hostel site to fall through – The Borrower argued the Second Bank entered into a joint venture with the Company and the Bank acted in breach of contract by refusing to advance the full sum under the facility -alleging Fund stands in place of bank’s- procedurally discovery is not order in summary proceedings until matter is adjourned to plenary hearing –counterclaim is not a claim for the Borrower but the Company – the counterclaim is statute barred – the second Bank is now a non-entity - borrower alleges breach of a joint venture agreement between bank and company – bank advanced €70,000 of €446,000 facility – Borrower alleges security invalid because full facility not advanced – facility document and guarantee show facility could be partially drawn down - no corroborative evidence of a joint venture – demand made by Plaintiff in 2017 – Fund not statue barred – any claim against receiver should be brought by the company regarding sale of Hostel site– complaints against receiver did not affect guarantee – no evidence that the sale of the Borrower’s residential properties were conducted negligently by receiver – allegations were mere assertions - no fair or reasonable probability of having a bona fide defence raised by defendant – judgment granted.

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