The High Court rejected Andrew and Antoinette Bergin’s application to invalidate the purported appointment of Jason Sheehy as liquidator of Lost Weekend Limited and to appoint Frank Wallace instead. Ms Justice Laffoy found that the company was not in liquidation when the application was brought or heard. She did not decide whether the Bergins were creditors or whether Wallace was conflicted.
The application was made under the Companies Act 1963. The Bergins said they had advanced €356,750 to the company to buy stock for a planned Dublin venture, Lost Weekend Design Limited. They claimed the company transferred only €236,257 worth of stock to Design, leaving at least €120,493 owed to them. The company’s directors, Declan Moloney and Emily Maher, disputed that the Bergins were creditors of the company and said it had only facilitated the ordering process. The judge made no determination on that dispute.
The application followed a creditors’ meeting held on 6 July 2012. The court heard that the Bergins had not received notice and that their representatives were excluded. A Revenue Commissioners official, Tom O’Brien, said he attended the meeting, where the directors proposed Sheehy as liquidator. Sheehy later stated that he had not attended, had not consented to act and was not the company’s liquidator. The company was still designated “normal” in a Companies Registration Office search.
The judge found that the statutory steps required to begin a voluntary winding up had not been followed. In particular, the members had not passed the required resolution acknowledging the company’s inability to pay its debts, and the court had no evidence that the resolution had been advertised as required. She also questioned whether the 6 July creditors’ meeting was valid: the statement of affairs was not before the court, so she could not establish how many creditors were entitled to vote or whether the meeting met the required attendance rules.
Laffoy J said the application was misconceived. Even if the company had been in liquidation and the Bergins were creditors, it would not have been appropriate to appoint a liquidator nominated by one creditor in those circumstances. The Revenue Commissioners had supported a creditors’ voluntary winding up and Wallace’s appointment, but the court did not appoint him.
The court left the claimed debt and the allegation that Wallace was conflicted unresolved. The judge said the Bergins could prove their claimed debt in the company’s winding up. She also criticised the directors’ handling of the company, describing it as a flagrant breach of the 1963 Act, and said it would be for a future liquidator to take appropriate steps. The judgment does not record a winding-up order or an appointment of a liquidator.