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You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Chancery Division Decisions >> Brennan, Re [2018] NICh 29 (6 December 2018) URL: https://www.bailii.org/nie/cases/NIHC/Ch/2018/29.html Cite as: [2018] NICh 29 |
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Ref: DEV10798
Neutral Citation No: [2018] NICh 29
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Delivered: 6/12/18
2017 No. 129919/AO1
JUDGE DEVLIN
"1. An order for rescission/set aside of the contract/tomlin order [sic] entered into by the Plaintiffs and the Defendant on the 9th of May 2016 by reason of the breach of contract and misrepresentation of the Defendant.
2. An order for the setting aside of the Court Order/Judgment dated 13th December 2016 by reason of the breach of contract and misrepresentation of the Defendant.
3. A declaration that Grainne Brennan should not have been a party and is not a party to any proceedings brought by the Ulster Bank in their action brought against Grainne Brennan as Grainne Brennan had no involvement in the matters pleaded by the Ulster Bank in their action against Grainne Brennan as the Ulster Bank was already aware that Grainne Brennan was not involved in any matters pleaded to by the Ulster Bank prior to the Ulster Bank issuing proceedings against Grainne Brennan.
4. Damages for loss and damage suffered by the Plaintiffs as a result of the breach of contract and misrepresentation of the Defendant.
5. Consequential Loss.
6. Any other relief as the Court may think fit
7. An order for the costs of this action."
"After the issue of the applications to set aside the Statutory Demands, I prepared and issued a Writ which makes the claim that the settlement and the judgment should be set aside .. In that matter, my wife and I are representing ourselves, which is still at an early stage.
. I respectfully say that the dispute to the Statutory Demand is based on the proceedings seeking to set aside the settlement and the judgment. I invite this Honourable Court to find that there is an issue to be tried through the medium of the proceedings which my wife and I have issued, and that until that action is determined, it would be premature to rule that there is no dispute to the Statutory Demand."
"Hearing of application to set aside
6.005 . . .
(3) On the hearing of the application, the court shall consider the evidence then available to it, and may either summarily determine the application or adjourn it, giving such directions as it thinks appropriate.
(4) The court may grant the application if
(a) the debtor appears to have a counter claim, set off or cross demand which equals or exceeds the amount of the debt or debts specified in the statutory demand; or
(b) the debt is disputed on grounds which appear to the court to be substantial; or
(c) it appears that the creditor holds some security in respect of the debt claimed by the demand, and either Rule 6.1001 (6) is not complied with in respect of it, or the court is satisfied that the value of the security equals or exceeds the full amount of the debt; or
(d) the court is satisfied, on other grounds, that the demand ought to be set aside."
The Court of Appeal in England in Re a Debtor (Lancaster No 1 of 1987) [1989] 1 WLR 271 held that the category of "other grounds" as specified in (d) above must be of the same degree of substance as those set out in (a), (b) and (c). Here, the only provision upon which reliance is placed by the appellant is as per [b] above, namely that, as the appellant contends, the debt is disputed on substantial grounds.
"It may be thought that the words of the relevant Rule are clear i.e. in this case, is the debt 'disputed on grounds which appear to the court to be substantial?' The court is not holding a full trial of the matter; it must only decide if the grounds appear to be substantial. They must be genuine. The grounds of dispute must not consist of some ingenious pretext invented to deprive a creditor of his just entitlement. It must not be a mere quibble."