The Court of Appeal has entered judgment for €97,920 against Georgina Appelbe on her personal borrowing, while sending a separate €3,390,207 guarantee claim to a full High Court hearing on one issue: whether the guarantee was supported by valuable consideration.
The ruling was made in an appeal from a 2018 summary judgment for OCM EMRU Debtco DAC, which had sought €3,488,127 plus costs. The company is the successor to National Asset Loan Management Limited, which acquired the loans and guarantee from Allied Irish Banks. The original proceedings began in 2015.
The personal borrowing arose from a €100,000 overdraft and a €277,000 loan for business premises in Cork. The Court of Appeal said the lender had elected not to pursue disputed interest on the overdraft after 12 September 2008. It rejected the appellant’s contention that the resulting reduction in the amount claimed was an error. The court also accepted that the High Court was entitled to find the personal-loan figures sufficiently explained.
The remaining claim concerns a guarantee signed by Ms Appelbe on 29 March 2007, with her husband, for debts of Algadorn Limited. The guarantee set a maximum liability of €5.81 million. The lender relied on a later company facility sanctioned in July 2007, for advances totalling about €4.89 million, as the consideration for the guarantee.
The Court of Appeal said the lender had not yet provided clear evidence that the guarantee signed in March was given in exchange for the facility sanctioned four months later, or explained the delay. It noted that the earlier company facility dated from December 2005 and, on the evidence described in the judgment, could not itself provide consideration for the later guarantee. The court said evidence of forbearance to sue or continued facilities tied to the guarantee could potentially matter, but no such evidence had been provided at this stage.
The court did not decide that the guarantee was invalid. It held only that Ms Appelbe had raised an arguable defence on consideration, sufficient to prevent summary judgment on that part of the claim. The High Court hearing is to be confined to that issue. The court directed Ms Appelbe to deliver a defence within three weeks, with any reply from the lender due within a further three weeks.
The Court of Appeal proposed that appeal costs be costs in the cause before the High Court, subject to either party making short written submissions seeking a different order. The judgment records the agreement of Haughton and Pilkington JJ.