The Court of Appeal has dismissed appeals by Star Elm Frames Limited and chartered accountant Anthony J. Fitzpatrick against a High Court order winding up the company and appointing Myles Kirby as official liquidator.
The High Court made the winding-up order on 10 August 2016 after the Revenue Commissioners petitioned on the basis that the company could not pay its debts. The appeal judgment, delivered by Mr Justice Michael Peart on 19 April 2018, upheld that order and the appointment of Mr Kirby.
Revenue’s petition followed a creditors’ meeting at which a majority by value voted to appoint Mr Fitzpatrick as liquidator in a voluntary winding up. Revenue had proposed Mr Kirby. The Court of Appeal said the High Court had discretion to replace an existing voluntary liquidation with a court-supervised winding up. It found the trial judge was entitled to conclude that the factors favouring court supervision outweighed those against it.
The appellants argued that a Revenue demand was invalid because it included an amount that had been written off under an earlier examinership scheme. The appeal court rejected the argument: the company’s substantial indebtedness to Revenue was not disputed, and the error in the figure did not by itself invalidate the demand. It also upheld the High Court’s decision to extend time for filing the petition’s verifying affidavit, finding no prejudice to the appellants.
The court upheld the appointment of Mr Kirby, saying the trial judge had considered the evidence and the competing factors. An appeal concerning the company’s books and records was moot because they had since been handed over.
The High Court had ordered Mr Fitzpatrick and the company to pay Revenue’s costs jointly and severally, and directed that fees due to Mr Fitzpatrick as voluntary liquidator be set off against those costs. The Court of Appeal upheld the costs decision. It said Mr Fitzpatrick had sought to join and oppose the petition, and the trial judge had discretion over costs. The appeals were dismissed.