The Court of Appeal has dismissed Dominic Carney’s appeal against a High Court decision refusing to dismiss a bankruptcy summons issued by Ennis Property Finance Designated Activity Company (DAC). The appeal concerned whether the summons should be set aside; the Court of Appeal did not adjudicate Mr Carney bankrupt in this judgment.
Mr Carney guaranteed up to €100,000 of debts owed by Philisview Property Limited to Bank of Scotland (Ireland) Limited in 2005. Ennis later acquired the loan and security. In February 2017, the High Court entered judgment against Mr Carney for €100,000 under the guarantee. His subsequent attempt to extend the time to appeal that judgment was unsuccessful.
Ennis issued a bankruptcy summons in May 2017. After attempts at personal service failed, the High Court granted Ennis an extension of time and permission to serve the summons by prepaid ordinary post. Mr Carney applied to dismiss it, arguing, among other things, that Ennis was not entitled to the guarantee, that he had discharged it with a promissory note, and that the service order was procedurally defective. He also alleged that bankruptcy proceedings were being used to stop him pursuing a claim against the receiver appointed over Philisview’s assets.
The High Court rejected his application in July 2018. On appeal, the Court of Appeal applied the test under section 8(6)(b) of the Bankruptcy Act 1988: a summons must be dismissed if a real and substantial issue arises for trial, supported by credible evidence. The court agreed that Mr Carney had not established such an issue. It said the earlier judgment on the guarantee had determined Ennis’s entitlement, and there was no subsisting appeal against it.
The court also found no evidence that Ennis had brought the bankruptcy proceedings for an improper purpose. Mr Carney had not provided a statement of affairs establishing that he had no assets; his own evidence referred to chattels worth about €80,000 held by the receiver. The court said Ennis was not required to exhaust other enforcement options or wait for the receivership or Mr Carney’s claim against the receiver to conclude.
On service, the 28-day period expired on a Sunday. The court held that, under the Rules of the Superior Courts, the next court-office day was Monday, 19 June 2017, when Ennis applied to extend time. The application was valid, and omissions from the application docket or order did not invalidate it.
The Court of Appeal dismissed the appeal, leaving the High Court’s refusal to dismiss the bankruptcy summons in place.