Letters of demand frequently request a party to comply with certain obligations by “close of business”. However, due to the uncertainty surrounding what this phrase means, the Supreme Court was recently asked to determine what time is close of business. 

Background

A mortgage deed provided that money owed by the borrower to the bank was repayable on demand and that if a demand was not satisfied, the bank could enforce its security by appointing a receiver. 

On 15 February 2012 the bank issued a letter of demand seeking repayment of a loan by electronic transfer or bank draft. The demand letter advised that the bank reserved the right to enforce its security “in the event that payment is not received by close of business on 17 February 2012”.

By Deed of Appointment, a receiver was appointed by the bank over the secured assets on 17 February 2012 at 4pm.

The borrower challenged the appointment of the receiver and argued that “close of business” was later than 4pm.

High Court decision

The High Court was satisfied that a bank’s normal opening hours were 10am to 4pm and as a result 4pm was the normal close of business for banks. Accordingly, the court was satisfied that the appointment of the receiver was valid as the demand had not been satisfied by close of business. Therefore the appointment of the receiver at 4pm was not premature.

Supreme Court decision

The Supreme Court rejected the borrowers’ argument that there was a difference between close of business and close of banking hours. The Supreme Court also rejected the borrowers’ argument that the bank was not entitled to appoint at 4pm but had to wait until 4.01pm to appoint. Once the deadline was reached and the demand was not satisfied, the power to enforce the security was exercisable.

Comment

This decision is an important one for any business which uses potentially ambiguous phrases such as “close of business”, when imposing deadlines. It is far more preferable to use defined deadlines so that any ambiguity or challenge can be avoided.

McCann v Halpin [2016] IESC 1. Beauchamps acted for Paul McCann in this case.