The High Court has dismissed a petition by Kilsaran Concrete to wind up Goode Concrete, which is in receivership, after finding that the company had a genuine and substantial cross-claim in separate competition proceedings.
In a judgment delivered on 2 November 2012, Ms Justice Laffoy said the competition claim against Kilsaran and two other defendants was closely connected to the €56,763.33 costs debt on which the winding-up petition was based. The court concluded that the claim exceeded that debt, though it made no finding on the eventual outcome or full value of the competition claim.
Goode Concrete had brought the competition proceedings, alleging that the defendants breached domestic and European competition law, including through predatory pricing and collusive tendering. Those allegations remain to be determined. The proceedings were still ongoing, with case management listed for 13 November 2012; neither Kilsaran nor the other defendants had delivered a defence at the time of the judgment.
The costs debt arose from an earlier refusal of Goode Concrete’s application for interlocutory relief in the competition case. The costs order was not appealed, and the costs due to Kilsaran were taxed at €56,763.33. After the company did not pay following a formal demand, Kilsaran presented its winding-up petition on 3 September 2012.
The court accepted that Goode Concrete was “hopelessly insolvent”. AIB, its largest creditor, opposed winding up, as did a number of unsecured creditors; the Revenue Commissioners took a neutral position. Two other creditors, CRH Plc and Roadstone Wood Ltd., supported Kilsaran’s petition. The court said the company had no unsecured assets available to a liquidator and found it probable that winding up would prevent the competition case from continuing.
Justice Laffoy concluded that the petition should be dismissed after considering the cross-claim alongside the circumstances surrounding the petition and creditors’ positions. She said there was sufficient evidence to conclude that, if Goode Concrete succeeded in the competition proceedings, Kilsaran’s costs debt would be eliminated. The court did not decide whether the company would succeed in those proceedings.
The company also said it intended to ask the Supreme Court for an extension of time to appeal the costs order, raising a concern about a judge’s shareholding in CRH. Justice Laffoy did not determine that issue, which she said was for the Supreme Court. She said it was unnecessary to address it further because the cross-claim was sufficient to dismiss the petition. The court’s order was to dismiss the winding-up petition; it did not determine the competition case.