Judgment: 2011-11-10 · Court archive

High Court awards petition costs in company winding-up case, declines priority order for now

The petitioner’s costs are to be taxed if not agreed. The court made no ruling on whether those costs should rank alongside the liquidator’s costs and left a properly filed application open.

High Court · [2011] IEHC 424

Who, what, where, when and why

Who
  • Miss Justice Laffoy
  • David Carson
What

The petitioner’s costs are to be taxed if not agreed. The court made no ruling on whether those costs should rank alongside the liquidator’s costs and left a properly filed application open.

Where

No place detail is included in this summary.

When

Judgment:

Why

Reasons reported in the judgment

The court granted the first request, finding the petitioner had been prejudiced by the costs of presenting and advertising the petition and preparing its case. But it declined to make the requested priority order at that hearing. The judgment said the court lacked information about the company’s financial position, whether the liquidator had understood the effect of the request, whether a committee of inspection existed, and the unsecured creditors’ views. It also noted that the required application under section 280 of the Companies Act 1963 had not been brought by originating notice of motion.

The High Court has ordered Jer Ryan Electrical Contractors Limited, trading as JRE Engineering Group, to pay the costs of a winding-up petition brought by Vinci Energies United Kingdom Plc, trading as Twiver Switchgear. The court declined, at this stage, to order that those costs rank equally with the liquidator’s costs in the company’s creditors’ voluntary winding up.

In a judgment delivered on 10 November 2011, Miss Justice Laffoy said the petitioner’s costs were to be taxed if the parties could not agree the amount.

The petitioner presented its petition on 1 September 2011, claiming the company owed €59,379.31. That total included €57,072 which the company had acknowledged owing before a statutory demand was served, and €2,307.31 described as late payment interest. The demand, served on 23 June 2011, was not met. The judgment said the petitioner had made serious but unsuccessful efforts to secure payment before filing the petition.

When the petition came before the court on 10 October, the company told the court its directors had accepted there was no realistic alternative to liquidation. It sought an adjournment to arrange a creditors’ meeting, saying a creditors’ voluntary liquidation would be less expensive. The petitioner and three other creditors did not object. The meeting was advertised for 27 October.

At a later hearing on 7 November, the court was told the voluntary winding up had begun and David Carson had been appointed liquidator. The petitioner accepted that the voluntary winding up should proceed and that its petition should be struck out. It sought both its petition costs and an order giving those costs equal priority with the costs of the liquidator in the voluntary winding up.

The court granted the first request, finding the petitioner had been prejudiced by the costs of presenting and advertising the petition and preparing its case. But it declined to make the requested priority order at that hearing. The judgment said the court lacked information about the company’s financial position, whether the liquidator had understood the effect of the request, whether a committee of inspection existed, and the unsecured creditors’ views. It also noted that the required application under section 280 of the Companies Act 1963 had not been brought by originating notice of motion.

The judge stressed that declining the priority order did not decide its merits. The petitioner remained free to bring a properly made application under section 280 and the court rules.

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