Order for security for costs granted in place of indemnity offered by plaintiff

High Court - Companies Act, 2014 - section 52 - security for costs - need prima facie case a party won't be able to pay - second named plaintiff has offered indemnity - principles can be summarised as follows - applicant must establish a prima facie defence - where defence based on fact must adduce evidence or demonstrate the existence of evidence establishing same - mere assertion of defence is insufficient - not sufficient for an applicant to simply refer to its defence - court must carefully scrutinise or interrogate claimed defence - not necessary for an applicant to prove defence on balance of probabilities at application for security stage - unnecessary for court to consider respective merits of parties’ competing contentions - court’s concern whether applicant has established prima facie defence - 2004 to 2007 - loan facilities from AIB to Fortberry - 1st March, 2007 - loan offered to Fortberry - charges over three properties acted as security - 10th April, 2008 - another facility guaranteed for €2,500,000 - 13th May, 2008 - guarantee given - 20th April, 2016 - AIB sued in separate proceedings - Fortberry consented to judgment in sum of €5,182,308.06 - Mr. Flynn consented to judgment in sum of €2,500,000 - 12th May, 2016 - statement of claim - September 2016 - Fortberry executed mortgages - AIB registered judgment against properties - 21st October, 2016 - second named receiver appointed as receiver - 2nd August, 2018 - AIB assigned interest to third named defendant - 2nd June, 2021 - proceedings instituted - 15th June, 2021 - statement of claim delivered - nine issues - challenge to appointment by AIB of second named defendant as receiver over properties - challenge to bankruptcy proceedings against second named plaintiff - challenge to the assignment by AIB to Everyday by global deed of transfer - order directing disclosure of price paid by Everyday for assignment - plaintiffs have no liability to AIB - indemnity from AIB for difference between sum of €2.6 million and sum paid by Everyday for assignment - order sought directing AIB to make transfer to Everyday - order sought restraining AIB from marketing the properties for sale and selling them - claims for damages based on these matters - must assess if AIB has a claim in relation to number of matters - whether appointment by AIB of second named defendant as receiver was invalid - whether assignment from AIB to Everyday was in breach of contract or duty - if AIB should disclose price paid by Everyday - whether AIB should indemnify Fortberry in respect of difference between €2.6 million and price paid by Everyday - order sought directing AIB to perfect transfer - can't say there's no defence to challenge to assignment where wasn't pleaded - inconsistency of approach if asking for order compelling them to complete steps - motion for security for costs not forum for forensic assessment of defence to the claim advanced in statement of claim or rights or wrongs of things said in exchange of affidavits which don't arise from pleaded case - has to be consideration of both, only as is necessary to determine whether prima facie defence exists - challenge of second named defendant as receiver - argued sale already agreed - deeds of appointment not in order - argued defective because of handwriting - no evidence of mortgage deed in respect of another - no evidence statutory periods complied with - no court order in respect of equitable mortgage - would not have survived assignment to Everyday - challenging appointment of receiver requires legal submissions so has defence - failure to exhibit deeds point dealt with - handwriting point also dealt with, there are separate documents which comply with the requirements - whether there are mortgages at all - evidence says they are - whether AIB had power to appoint a receiver - no evidence put before the court of terms and conditions so no prima facie defence - argues could appoint receiver - Land and Conveyancing Law Reform Act, 2009 - section 108 - power to appoint receiver - says equitable mortgage under the loans - doesn't appear payment made under 26th April, 2016 order two months after becoming due so the section applies - mortgage could have contained separate terms and conditions so can't say there's defence - appears there is an equitable mortgage - existence assessed by pleadings - no evidence of court application - defence of wrongful appointment assigned to Everyday - argument this didn't survive appointment - defence this isn't for AIB - argued transfer not registered on relevant folios - delay would have to be pleaded - indemnity not appropriate to direct or accept - first named plaintiff subject to protective certificate - had sought personal insolvency arrangement in 2019 - highly likely he won't be able to discharge - accepting indemnity in place of order for security tantamount to refusing order for security - not accepted - quantum - default position Court should direct security in full amount of probable costs - legal costs accountant gave evidence for AIB - second named plaintiff, former taxing master, for Fortberry - court preferred legal costs accountant's evidence as second named plaintiff not expert despite expertise and accountant's evidence reasoned and considered - adjournment to obtain costs accountant's report would split hearing in two - no reason why not in affidavit despite five weeks within which to do so - no reason why didn't later seek to submit - no reason for adjournment or to allow request - quantum approached on basis trial will last a week - security directed once costs calculated by parties.