The High Court has ordered Derbar Developments (Westport) Limited restored to the Register of Companies, accepting that Everyday Finance DAC could apply as the assignee of a debt the company owed before it was struck off.
Mr Justice Mark Sanfey delivered the judgment on 19 December 2022. The company had been struck off on 21 January 2015 after failing to file annual returns. Everyday applied under section 738 of the Companies Act 2014, saying it needed restoration to enforce mortgages securing the company’s loans, including by appointing a receiver.
Everyday said Allied Irish Banks plc had transferred its rights in the company’s facilities, mortgages and guarantees to it in 2018. Its grounding affidavit stated that €1,565,559.05 was due as of 6 January 2021. That figure was an amount asserted by the applicant; the judge said the application required proof of creditor status, not the amount of the debt, and noted that Derek Lavelle had not disputed that sum was due.
Lavelle, a company director opposing the application, argued that Everyday had to have been a creditor when the company was struck off. He acknowledged in submissions that AIB was then a creditor and that it later purported to assign the debt to Everyday. The court focused on whether that assignment was enough to give Everyday standing under section 738.
The judge held that the section did not require a creditor applicant to have been a creditor on the date of dissolution. He concluded that the debt survived the strike-off for the purpose of a restoration application and that the assignment changed the identity of the creditor, not the underlying debt. Everyday had therefore established that it was a creditor and had been disadvantaged by the strike-off. The judge also found restoration just and equitable, reasoning that refusing it would leave the company’s secured assets beyond enforcement because of the company’s own neglect.
The court ordered restoration and directed directors Barry Dobbin and Derek Lavelle, or either of them, to deliver outstanding annual returns and tax statements. It also directed them, insofar as necessary, to take reasonable steps to ensure the company appointed a director and met the related filing and residence or bond requirements.
The judgment did not set deadlines for the annual returns or tax statements, or decide costs. It allowed the parties ten days to make written submissions on those matters and any ancillary order, barring further argument on the substantive issues.