Rule 37, Order 7 of the Superior Court Rules; turn a Summary into a Plenary.
1. Plaintiff chose the wrong Summons to bring this action against the Defendant / Defendants: I do say that an arguable defence is clear and certain, from even a passing glance of the information contained in the Summary Summons, the Affidavits and papers contained in the data file from the bank.
2. Plaintiff has no Legal or Constitutional right to accelerate the procedure of due course or due process.
3. Plaintiffs Solicitor has not advised his client as to the true facts or the Client has not given the solicitor the complete picture and the Summary Summons is misconceived ‘Ab Initio since the Plaintiff has not assembled the necessary evidence, this I decree from close examination of the facts contained in my data file obtained from the bank.
4. The case of “No Defence” averment may be missing but rather the Plaintiff knows well that there are grounds for Defence and I do further say that the Plaintiff knew that before the proceedings were issued. I believe the Plaintiffs claims are disingenuous.
5. Plaintiff was ill advised as to the situation of the Defendant having no defence, either the Solicitor did not grasp the contents of the case or the Solicitor was not in clear site of the file. Or the Solicitor simply accepted the Clients assertion that there was no Defence.
6. The Supreme Court considers “is there a fair and Reasonable probability of the Defendant having a real or bona fide defence”. I do say that it is quite obvious that I do have a bona fide defence, I do say that the signatures on several documents are one, not my signatures, two, that there is a clear crossover from two loans, the bank seems to be using paperwork from two separate loans, given at two separate times.
7. The Deponet is, effect swearing to items that may well be misleading and is showing that it is not only clear but very clear that I have a Defence. I do further say that the Plaintiff is inferring by way of the Summary Summons that this case is not even arguable, there is clearly an arguable situation here, it is a distinct possibility that Plaintiff is using paperwork from ‘other’ loans we had at one time or another. This by virtue of being my suspicions alludes to a contest and this Summary Summons should be struck out.
8. The No Defence averment can not be made as the above details prove to differ: it is not enough that the deponet believes that the defendant owes Liquidated Damages but that there is no argument; it is a legal test and I have grounds to test their argument.
9. As an Officer of the Court, the solicitor cannot do other than view the case file and dispassionately advocate that there is a case to argue, I do say that some information must have been withheld from the Solicitor to make him take the Summary Summons route for if he clear site of all the facts he would have paused and questioned the validity of a Summary Summons course.
10. Plaintiffs own Affidavit gives the game away and are contradictory, I do say that the Affiant are constructing the Affidavit from two different files and therefore relying on second-hand knowledge and that is hearsay.
11. The Solicitor read the file he would have realised that the case had all of the hallmarks of being incomplete or even dubious. He should have quickly come to the opinion that there was / is a defence, in that respect he could not professionally advised his client that a Summary route was the true course.
12. I wish to make it known that I refer, in this Affidavit to the Masters decision: ACC Bank V Thomas & Mary Heffernan because I feel that this case is invariantly the same. It maybe that the Plaintiffs Solicitor was mistaken in his opinion that I had no Defence available to me, that is not the case and this Summary Summons must be struck out
I have no issue with the Plaintiff starting again under a Plenary, there is most differently a case for both parties to bring to account certain facts. I do further say that this case can not proceed on a dubious writ.