The High Court has allowed an appeal by John Berrill, Denis McCarthy and Jeremiah McCarthy and set aside a Circuit Court order that had summarily dismissed their €39,000 overpayment claim against Kenmare Property Finance DAC. The proceedings will now go to a full hearing before the Circuit Court.
The dispute concerns a settlement agreement signed in May 2018 in earlier debt collection proceedings. It provided for a total payment of €1.4 million. The debtors say they had paid €139,000 under that agreement by December 2019 and that a €130,000 property-sale deposit also counted towards the total, leaving €1.131 million due at closing.
The mortgaged property in County Louth was ultimately sold for €1.3 million. The sale closed on 6 February 2020, when €1.17 million was paid on the debtors’ behalf. They say that amount included an overpayment of €39,000. Kenmare argued that the parties had reached a later accord and satisfaction requiring the additional payment, and that the claim was therefore bound to fail or was an abuse of process.
In a judgment delivered on 13 April 2023, Mr Justice Garrett Simons said the limited emails relied on by Kenmare did not establish that the parties had agreed to increase the debtors’ obligations. The correspondence was incomplete and ambiguous, including a 5 February 2020 email referring to an additional amount transferred in error. The debtors said that reference concerned the disputed €39,000.
The judge said the dispute required discovery and oral evidence. The parties disagreed about whether the emails represented their entire agreement, and the debtors also alleged they had been put under significant duress. The court could not determine on the documents before it whether the parties had agreed to a further €39,000 payment.
The judge also refused Kenmare’s request for an adjournment to submit additional evidence. He said the creditor had chosen the limited documents on which to seek summary dismissal and had not shown that it was unfairly taken by surprise. He noted that refusing summary dismissal did not prevent Kenmare from defending the claim at trial.
The High Court set aside the Circuit Court’s 1 June 2022 order and refused Kenmare’s application to dismiss the proceedings. The judge gave a provisional view that the plaintiffs should recover allowable costs of the motion in both courts, with High Court costs limited to their expenses and outlay because they appeared without legal representation. Either side could file submissions on costs within two weeks.