The High Court has refused an application by Leslie Stuart to set aside a €98,252 judgment entered against him and his son, Jeffrey Stuart, after they failed to enter an appearance in proceedings brought by Fabri-Clad Engineering Ltd.
Mr Justice Binchy said Leslie Stuart had a reasonable prospect of defending the claim on the basis that the consideration for his guarantee may have been past consideration. But he refused the application, finding that Stuart had not established the special circumstances required to set aside the default judgment.
The judgment was entered on 9 May 2017. The application to set it aside was brought more than eight months later. The underlying claim arose from a guarantee Leslie Stuart gave in January 2014 for his son’s liabilities to the company, then known as Long Roulston Ltd. The judgment said the guarantee acknowledged a debt of €98,252 and provided for two annual payments of €5,000 until the debt was paid. The company claimed it continued supplying goods to Jeffrey Stuart in reliance on the guarantee.
Leslie Stuart said he had not been properly served, but the judge noted evidence that he had been personally served and that his solicitors had referred to the summons. The applicant did not pursue that argument at the hearing. He also claimed a counterclaim based on steel erection work, but the judge found the material fell short of showing a valid counterclaim sufficient to justify setting aside the judgment.
The judge accepted that the guarantee had been executed as a deed under section 64 of the Conveyancing and Law Reform Act 2009. However, because it did not state the consideration for the guarantee, he considered there was a reasonable argument that the consideration was past consideration. That could provide a defence at a full trial.
The plaintiff opposed reopening the judgment, citing delay and a November 2017 letter from Leslie Stuart’s solicitors proposing monthly payments towards the debt. The judge treated the letter as suggesting acceptance that the debt was due. He said delay alone was not decisive, but concluded that the applicant had identified no special circumstances explaining his failure to appear. His account that he had not been served was untrue, the judge said, and the payment proposal and delay also weighed against him.
The application was refused. The court did not set aside the judgment or determine the underlying guarantee dispute at trial.