The High Court has refused an application by Tougher Oil Distributors to be restored as the registered owner of 50 shares in Bellevue Port Services (Waterford) Ltd, finding that the company had not shown the shares were removed from its register without sufficient cause.
The section 173 Companies Act application challenged a transfer said to have taken place in 2013, after an examiner was appointed to Tougher Oil. The respondents, Amber Petroleum Unlimited Company and Fitzgerald Otto 2019 Unlimited Company, maintained that a shareholders’ agreement deemed the shares offered for sale when examinership began. Amber said it paid €50 and sent a completed stock transfer form to the examiner. The register was not updated until 2021, when Amber transferred its entire holding to Otto.
Tougher Oil argued that the agreement’s transfer process had not been followed and relied on company filings that continued to list it as a shareholder through 2020. It also disputed whether it received the €50. The court said the evidence showed Amber had sent a cheque payable to Tougher Oil to the examiner and that the sum was debited from Amber’s account. It made no finding that the money was misappropriated, and said any such issue would be between Tougher Oil, its former director and the examiner.
Justice Butler held that the application could be decided on affidavit and rejected the respondents’ procedural objections. The company had been served with the application, although it was not formally joined as a party; the judge found that the objection to its non-joinder had no substantive merit in the circumstances.
The judge described the relevant clause in the shareholders’ agreement as poorly drafted, but considered the respondents’ interpretation—under which an examiner’s appointment triggered the share-transfer process—closer to the parties’ intention. She rejected the arguments that the examinership barred the transfer, that early payment invalidated it, and that the delay in registration alone prevented recognition of the transfer. The court also found there was insufficient evidence that Tougher Oil had regarded itself as owner of the shares after 2013, and that the continued company filings did not establish an estoppel against Amber.
The court’s decision was limited to whether the register should be rectified under section 173. It refused that relief, finding that Tougher Oil had not discharged its burden of showing the removal of its name was without sufficient cause.