A fisherman who alleged his wife forged his signature on documents for two loans totalling €240,000 has failed to persuade the Court of Appeal that he should not be liable to repay the bank.
In a ruling on Friday, Mr Justice Donald Binchy said he did not accept it is unfair to hold Brian Murray accountable for the full borrowings from which he received a benefit.
Mr Murray (64), a fisherman based out of Killybegs, Co Donegal, said he had entrusted the management of the family house and financial affairs to his wife, Attracta Murray (63), as he was away at sea for long periods.
Bank of Ireland Mortgage Bank brought High Court proceedings seeking to recover €194,000 plus interest jointly and severally against the couple on foot of a 2007 loan of €200,000 that was lodged into their joint account.
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The husband and wife separately appealed the High Court’s orders permitting the bank to recover the full amount against Ms Murray and the amount less interest against her husband.
Mr Murray claimed he had left it to his wife to do whatever was necessary to borrow €40,000 in 2003 – to half fund the purchase of an apartment in Spain – except he did not authorise creating any charge over their family home, which was near to Killybegs town.
He denied he knew there was a further advancement of €200,000 in 2007, whose purpose was said to be for building an investment property but which was, in fact, used for various miscellaneous purposes, including to discharge the earlier loan.
He claimed he agreed with his wife to borrow only €30,000 at that point to buy back a site from their daughter. He said he only became aware of the larger sum in June 2011 when he was refused a small loan to buy a quad bike.
He alleged he understood the loans were to his wife or a “joint personal loan” and said he never agreed to provide security of the family home, never signed any loan documentation and did not meet any bank personnel or solicitor about it.
The bank maintained it offered a €40,000 joint loan, accepted by the couple, that granted it first charge over their home as security. The latter sum was also secured over the house, it submitted.
The couple ceased repayments on the 2007 loan in June 2012, said Mr Justice Binchy.
The High Court found that Mr Murray had not executed any documentation in connection with the two loans and that his signature on various lending documents was unreliable.
He had submitted skipper logbooks to support his claim that he was at sea when all of the relevant loan documents were signed. He alleged his wife was responsible for the forging of his signature. The judge, Ms Justice Marie Baker, did not express a concluded view on whether Ms Murray did forge her husband’s signature, said Mr Justice Binchy.
Ms Justice Baker concluded no contractual arrangement existed between him and the bank.
Nonetheless, she ruled that he was liable in restitution to the bank because he was unjustly enriched by the money. Ms Murray was not legally represented and did not make submissions, so, having heard evidence of a valid loan facility, the judge entered judgment against her.
The background was set out in Mr Justice Binchy’s ruling, on behalf of the three-judge appeal court, dismissing the Murrays’ appeals.
The judge said it is apparent the fisherman “did nothing at all to inquire into the source of the payments from which he received a benefit and of which he was aware before 2011″. Mr Murray cannot cry “foul” when he is later held accountable for the full amount, Mr Justice Binchy added.
Mr Murray alleged the High Court erred in finding the bank could recover money from him under the law of restitution despite alleged breaches of the 1995 Consumer Credit Act. However, Mr Justice Binchy rejected this, finding that the fisherman cannot rely on the 1995 Act as he had no agreement with the bank.
The court also dismissed Mr Murray’s claim that the judge was wrong to find he had “knowing receipt” of the loan proceeds. The appellant argued he knew only about €30,000 but did not have “knowing receipt” of the €170,000 balance.
Mr Justice Binchy said the skipper cannot rely on this defence as, once he knew there were certain payments he benefited from that might not readily be met from income, he became “duty bound to make inquiries as to the source of the funds, and not simply turn a blind eye”.
The precise amount borrowed “was not relevant”, the judge added.
He dismissed Ms Murray’s appeal as she did not advance any persuasive reason for why she should be permitted to make an argument she did not make in the High Court.
His ruling was supported by his colleagues, Ms Justice Caroline Costello and Ms Justice Mary Faherty.
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