The High Court has given ACC Bank plc liberty to enter final judgment against Pat Flynn and Helen McGardle for €2,674,729.82, with interest under the loan agreement to the date of judgment.
Mr Justice Brian J. McGovern delivered the decision on 3 December 2010. The bank sought summary judgment on a loan facility of up to €3.606 million, offered in October 2007 to fund professional fees and planning contributions for a development at Killea, Dunmore East, County Waterford.
Flynn’s affidavit said the sum claimed was owed, but “not due at this time”. The defendants’ case was that the bank had represented that repayment would be made when the development was complete. McGardle filed an affidavit adopting Flynn’s account. John Duan, formerly of the bank, disputed that the representation had been made.
The court noted that the facility letter provided for a 12-month term from first drawdown and repayment immediately on demand. The defendants accepted that they had entered into that agreement. The bank’s demand was dated 17 June 2010, after correspondence in May. In a 17 May reply to the bank, Flynn acknowledged that it was entitled to begin legal proceedings to recover the outstanding money; the court noted that the email did not raise the alleged repayment representation.
The judge also noted that Flynn raised the alleged representation in his replying affidavit, sworn on 15 November 2010, and that the defendants did not specifically challenge the 25 October 2007 facility relied on by the bank. Applying the summary judgment principles cited by the parties, the court found no reasonable basis on which the defendants could have believed repayment was deferred until completion of the development. It concluded they had not shown a fair or reasonable probability of establishing a bona fide defence.
The court did not itself enter judgment. It gave the bank liberty to enter final judgment for the sum claimed, with interest under the agreement to the date of judgment.