The High Court adjourned an application concerning the voluntary winding up of Birchwell Developments Limited, giving the parties time to consider the court’s observations and amend the application if necessary. The court did not make a final order on the requested relief or decide the application’s merits. It said it intended that a contributory of Birchwell might be a more appropriate applicant.
The application followed the failure to deliver a statutory declaration of solvency to the Companies Registration Office (CRO). The company had intended to wind up as a members’ voluntary winding up, but under the legislation described in the judgment, a winding up without a declaration delivered in accordance with the statutory requirements is treated as a creditors’ voluntary winding up.
An insolvency practitioner, appointed by the company as liquidator, said he understood that the declaration had been lodged. He said he discovered on 26 May 2010 that the CRO had no record of his firm’s letter of 16 December 2009, which had referred to his appointment and enclosed forms. The court noted that almost six months had passed since the winding-up resolution and said it would need a better explanation of the failure before it could be satisfied that an application for directions was made within the statutory time limit.
Birchwell sought directions on how to remedy failures to follow creditors’ meeting procedures, or alternatively an order validating the procedures already adopted. The judge said granting the alternative relief would undermine statutory protections for creditors and contributories. She also observed that directions to remedy the default could not simply exempt the company from the statutory requirements.
The judge considered that annulling the winding-up resolution could be the appropriate course. That would require the members to begin the members’ voluntary winding-up process again and comply with the statutory requirements. She said the court might consider protecting particular actions already taken by the practitioner, such as collecting money owed or paying debts, if those actions and the company’s position were fully put before it. She declined to give blanket approval without that information.
The judgment records an adjournment, not an annulment of the resolution or directions to the liquidator. The court also said it intended that a copy of any order be filed with the CRO and notice advertised in Iris Oifigiúil within 21 days.