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Court of Appeal dismisses appeal and upholds decision of the High Court refusing to set aside a judgement obtained by the respondent against the appellant in default of appearance in the amount of €860,485.75 plus costs, on the grounds that: (a) the trial judge was entitled as a matter of law and on the facts to determine that it was impossible to determine where the truth lay and, consequently, as the appellant had not sought to cross-examine the summons server or solicitor for the respondent, hold that the appellant had failed to discharge the burden to demonstrate that there was irregularity in the service; (b) the trial judge correctly concluded that the grounds of defence raised in the High Court did not amount to a good defence; and (c) the new points raised during the course of the hearing of the appeal did not disclose a good or arguable ground of appeal.
Donnelly J (nem diss): Summary judgment - appeal of a refusal by the High Court to set aside judgment obtained by the respondent against the appellant in default of appearance - judgment in the amount of €860,485.75 plus costs in the amount of €384.00 - the respondent sought judgment against the appellant on foot of the terms of a loan facility letter dated 18th April, 2005 pursuant to which the respondent advanced to the appellant a loan in the amount of €860,000 - whether the appellant had been properly served with summary summons - Order 13, rule 11 of the Rules of the Superior Court - conflicting evidence on affidavit in the High Court as to whether the appellant had been served with the summons - summons server had sworn that he made numerous attempts to serve the appellant and eventually served her at her business premises - High Court held that in the absence of an application to cross-examine the summons server or the respondent's solicitor, the appellant was served with the summons - the burden of proof in such an application must lie with the party seeking to set aside the judgment - whether the appellant had a good defence to the claim - appellant sought to introduce a new ground of defence on the day of the appeal - this did not give rise to an arguable ground of appeal - appeal dismissed.
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