The High Court has refused Dominic Carney’s application to dismiss a bankruptcy summons issued by Ennis Property Finance DAC. Ms Justice Costello ruled on 16 July 2018 that no issue would arise for trial between the parties, as required for dismissal under section 8(6) of the Bankruptcy Act 1988.
The summons, issued on 22 May 2017, was based on a €100,000 judgment debt, plus interest, costs and expenses, granted against Mr Carney on 27 February 2017. That judgment concerned a guarantee he had entered into in 2005 for debts owed to Bank of Scotland (Ireland) Ltd by Philisview Properties Ltd.
The lender’s facilities were later acquired by Ennis Property Finance Ltd, which changed its name to Ennis Property Finance DAC. The High Court had granted summary judgment after Mr Carney argued that a promissory note discharged the company’s debt. The judgment records that this argument was rejected in the High Court and Court of Appeal. The Court of Appeal also refused to extend the time to appeal, finding no arguable ground of appeal.
Mr Carney raised a number of grounds for dismissing the bankruptcy summons, including disputes about the original guarantee, alleged fraud, the lender’s purpose in pursuing bankruptcy, and the use of bankruptcy rather than other methods to recover the judgment debt. He also challenged the order allowing substituted service by post and argued that bankruptcy could affect his claim to chattels held by a receiver.
Justice Costello held that points already decided, or which Mr Carney had the opportunity to raise in the earlier proceedings, could not be reopened in this application. She found no evidence that the bankruptcy process had been brought for an improper purpose. A judgment creditor was not required to exhaust other recovery methods before seeking bankruptcy, she said.
The judge also rejected the service challenge. The 28-day period for personal service expired on a Sunday, and the application to extend time was made the next day the court offices were open. The court could order substituted service without the consent of the person to be served. On Mr Carney’s chattels claim, the judge said the cause of action would form part of his estate if he were adjudicated bankrupt, and the Official Assignee could pursue it for the estate’s benefit.
Justice Costello refused requests to refer questions to the Court of Justice of the European Union or the European Court of Human Rights, or to state a case to the Supreme Court. The ruling concerned whether the summons should be dismissed; it did not adjudicate Mr Carney bankrupt.