The High Court ordered Fuerta Limited wound up after finding that its prolonged failure to file annual returns, combined with the absence of a realistic alternative, made winding up just and equitable.
Mr Justice Peter Charleton delivered the judgment on 22 January 2014 in a petition by Bank of Scotland plc under section 213(f) of the Companies Act 1963. The judge said that winding up on this ground was an extreme step, appropriate only where there was very serious non-compliance, no reasonably available alternative and existing or impending prejudice.
Fuerta was incorporated in 2006 to participate in developing and owning a nursing home near Marlay Park, south of Dublin city. The bank had made a loan facility of up to €15 million available under an investment structure in which Fuerta held a 61% stake; individual investors held the remaining 39%.
The company’s directors had seriously defaulted on the obligation to file annual returns with the Companies Registration Office. Fuerta had previously been struck off the register and restored in June 2010, but no annual returns had been filed since then, despite assurances, according to the affidavit evidence described in the judgment. The bank had sought extensions to delay a further strike-off. The judge said that striking off, and the resulting loss of corporate personality, was now imminent.
The bank’s security was to be enforced, but a sale of control of the nursing-home facility required the company’s cooperation or a liquidator able to control it. The judge said the directors had not responded positively to approaches and that no one represented the company at the hearing. Evidence was that a liquidator could exercise the company’s corporate powers to help dispose of assets. The court was also told that a tax arrangement had a limited window, with a deadline of 28 January 2014 to meet requirements for a legislative exemption.
The judge concluded that other steps had been pursued without a realistic prospect of resolving the situation. He held that, in those circumstances, it was just and equitable for Fuerta to be wound up. The judgment does not name the directors or individual investors.