The Court of Appeal has dismissed Richard Dineen’s appeal against his adjudication as bankrupt, ruling that the debt relied on in the petition was a liquidated sum under the Bankruptcy Act 1988.
The appeal was limited to whether the debt met that requirement. Dineen argued that the amount in the petition was inaccurate and that the High Court judge had not established the precise sum owed before making the adjudication. Promontoria (Arrow) Limited submitted that the amount could be worked out by arithmetic from the loan terms, interest, repayments and proceeds from secured property sales.
The Court of Appeal said the trial judge had been told that the debt had fallen between the bankruptcy summons and the later petition because secured properties had been sold and the proceeds credited. An updated affidavit corrected the calculation for the date of the petition hearing. The appeal court rejected Dineen’s separate contention that the judge had not been made aware of the differences in the figures.
The court distinguished the strict accuracy required in a bankruptcy summons from the treatment of a petition. It said a sum is liquidated if it has already been ascertained or can be determined by arithmetic using known or accepted figures, without further evidence, agreement or judicial determination. The court found that the debt arose under loan contracts and was calculated in a subsequent affidavit opened to the trial judge.
The judge hearing the petition did not have to calculate the amount herself, the appeal court said. The relevant statutory test was whether she was satisfied that the act of bankruptcy involved failure to pay a liquidated sum exceeding €20,000. The court also found no prejudice to Dineen from the reductions in the debt: credit for proceeds from the secured properties reduced the amount owing and related interest.
The court dismissed the appeal. It gave a provisional view that Promontoria was entitled to the costs of the appeal and the costs of Dineen’s now-withdrawn appeal concerning an earlier order. Dineen was given ten days to submit reasons for disputing the proposed costs order; Promontoria could then respond within ten days. The judgment does not record a final costs determination.