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Boyle, A Bankrupt, In the Matter of [1998] IESC 47 (27th November, 1998)
THE
SUPREME COURT
O’Flaherty
J.,
Lynch
J.,
Barron
J.,
(10/96)
IN
THE MATTER OF JOE BOYLE, A BANKRUPT
Judgment
(ex-tempore) delivered on the 27th day of November, 1998, by O’Flaherty J.
This
is an appeal brought from the judgment of the High Court, Murphy J. of 18th
December, 1995,
refusing
Mr. Boyle’s application to have his adjudication as a bankrupt, which
took place on 13th November, 1995, set aside on the basis, as we understand the
submission made to the High Court judge and to us, that in some way it was the
understanding of Mr. Boyle that the goods that he bought from Ardfert Quarry
Products Ltd. were the debt of a limited company.
1. Mr.
Carroll of Ardfert Quarry Products Ltd. in his affidavit set forth in the
clearest terms, in paragraph 4, what the situation was. He swore and I quote
from his affidavit:-
“I
say that I was contacted by Mr. Boyle personally by telephone in or around
January, 1990, when he explained that he needed building material for work to
be done at his boatyard at Dingle, Co. Kerry. I was aware at the time that he
was a director of a company or companies which would have had an involvement in
-2-
the
boatyard, but did not know the name of that company or exactly what interest it
had in his business of running a boatyard. I was however aware that his
company’s business was not going well at the time and hence I made it
quite clear to him that the goods would be supplied to him personally, and
invoiced to him personally, and not to any company of his. He accepted that
this was the position, and the only basis on which goods would be supplied to
him.”
2. There
is no express disengagement from that position by Mr. Boyle in the course of
his affidavit. He swore:-
“I
have known Mr. O’Carroll for a number of years prior to the slipway being
damaged as referred to above. I attended at the premises of Ardfert Quarry
Products, on a date I am not too sure of but prior to the slipway being damage,
to inspect steel, at Mr. O’Carroll’s invitation, that Ardfert
Quarry Products had for sale at the time. Mr. O’Carroll, on this
occasion, showed me around the quarry of Ardfert Quarry Products. I had a
number of other meetings with Mr. O’Carroll, and various other
businessmen, at in or around the time the slipway was damaged regarding
proposals for commercial development of Dingle and Dingle Harbour area in
particular. In addition, Mr. O’Carroll and Mr. Joe Doyle, also of Ardfert
Quarry Products Limited, visited me at the boat yard in Dingle. I also
participated, at Mr. O’Carroll’s invitation, in meetings with
senior politicians and civil servants, at the highest level, regarding the
proposals to develop the Dingle Harbour area. Mr. O’Carroll was well
aware of the damage to the slipway and he is not correct in what he says at
paragraph 4 of his affidavit. I met
-3-
Mr.
O’Carroll personally and, at all times, he was aware of the situation
regarding the High Court case, and matters giving rise thereto, and was well
aware that the goods being supplied were to assist in the temporary repair of
the slipway and that the slipway and the High Court case were the property of
Bádclós An Daingean Teoranta and not I personally.”
3. The
learned trial judge had a number of things to say about that. He pointed out,
in the first instance, that the judgment had been got in default of appearance
back in 1991 and it was now too late to raise this matter. The first time it
had been raised was in November 1995 during the course of the bankruptcy
proceedings. The judge went on to say:-
“In
relation to the affidavits there is a question relating to the correctness of
fact. The evidence does not support the proposition that this was a company as
opposed to a personal debt. It is clear that the creditor felt there was no
misapprehension as to who he had been dealing with. He had insisted on dealing
with Mr. Boyle personally. He had issued proceedings against the individual and
had obtained judgment against him. It is significant that a judge of the
Circuit Court had informed Mr. Boyle during the course of other proceedings
that he had the right to review the judgment but Mr. Boyle had not exercised
that right.”
4. I
must conclude that this appeal is really unstateable and must be dismissed.
-4-
5. Another
serious aspect of this case is that a stay on this matter was granted by this
Court on 22nd March, 1996, on the basis that Mr. Boyle would file a statement
of affairs with the official assignee, and that unfortunately has not happened.
He should attend to that without more ado because an undertaking should not
lightly be given to this Court if it is not intended to honour it.
© 1998 Irish Supreme Court
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