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High Court grants summary judgment in the sum of €6,091,208 against a defendant tax consultant and guarantor of the full debts of a relevant company and signatory to a loan agreement now in default, as the defendant had failed to establish an arguable defence in circumstances where the court found that an unsigned waiver contained within the loan agreement indicating that the defendant has had the opportunity of taking independent legal advice prior to providing such a guarantee was solely for the bank's benefit to exclude potential defences to possible later proceedings to enforce the said guarantee against the defendant and was therefore severable from the loan agreement as a whole and further, that such a waiver was a 'special condition' rather than a 'condition precedent' of the agreement itself.
Summary judgment - €6,091,208 - defendant seeks to remit matter to plenary hearing - desire to cross-examine individual who made representation to defendant prior to him signing loan guarantee - no basis to adjourn to plenary hearing as evidence must be taken at its height - defendant a tax consultant and company secretary - full guarantee of indebtedness provided - whether need for independent legal advice a condition precedent within letter of loan offer - no basis for defence based on non est factum in circumstances where the documents signed by the defendant clearly state and confirm that a full guarantee was to be provided - waiver of independent legal advice - if term is exclusively for benefit of one party to contract it must be severable - purpose of waiver - bank's intention to exclude defences open to guarantor on later date - bank entitled to waive clause - 'special condition' of guarantee and not a 'condition precedent' - no basis to adjourn for plenary hearing - order for judgment and costs to plaintiff
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