The High Court has granted Leonard & Woods Developments Limited liberty to enter final judgment for €388,906.74 against Brian Pagni, finding that he had raised no arguable defence to the company’s claim under guarantees for rent and service charge debts.
Mr Justice Cian Ferriter delivered the judgment on 22 November 2021. The application sought summary judgment. The defendant asked for the claim to be sent to a plenary hearing, arguing that two issues under section 549 of the Companies Act 2014 provided arguable defences.
The dispute arose from leases of units in the Boyne Shopping Centre in Drogheda, County Louth, held by Matthews Chemists (Drogheda) Limited. Pagni, a former director of the company, had guaranteed certain company debts to the plaintiff’s predecessor in title. During the company’s examinership, the plaintiff received 5% of its debt in full and final settlement of its claim against the company. The parties did not dispute the balance said to remain due under the guarantees.
The first defence was that the plaintiff had served its statutory offer notice too late. The court said the notice had to be served within 48 hours after the plaintiff received notice of the creditors’ meeting. The defendant suggested the meeting notice may have arrived on 2 November 2018, but said he did not know when the plaintiff received it. The plaintiff’s director provided a date-stamped copy and emails showing it was received on 5 November. The offer notice was served on the defendant the following day. The judge found no credible basis to challenge that evidence and rejected this proposed defence.
The second defence was that the plaintiff had revoked its offer by appointing a proxy who attended the creditors’ meeting on 7 November 2018 and voted for the scheme. The judge held that the defendant neither communicated acceptance of the offer nor attended the meeting. Under section 549(3), the defendant would have had to give the examiner a copy of the offer and inform the examiner of his acceptance at the meeting to exercise the transferred voting rights. As those steps were not taken, the plaintiff was free to vote through its proxy; the judge found no arguable case that the offer had been revoked.
The court concluded that the plaintiff’s proofs were otherwise in order and granted liberty to enter final judgment for €388,906.74. It proposed that the plaintiff receive the costs of the application, to be adjudicated if the parties could not agree. The defendant was given seven days to apply to argue against costs following the event. The judgment does not state a later costs determination.