The High Court declined to make restriction orders against former Access Cleaning Services Limited directors Christopher Gill and Martin Gill, finding that their conduct over the company’s unpaid tax liabilities did not meet the threshold of dishonesty or irresponsibility under section 150 of the Companies Act 1990.
Mr Justice Barrett delivered the judgment on 30 May 2014. The application was brought by liquidator David Van Dessel after the company was wound up on 16 April 2012 at the Revenue Commissioners’ behest. Access Cleaning provided industrial cleaning services and had 15 employees when it went into liquidation.
The company owed €57,433 in revenue liabilities at winding-up. The judgment says the arrears appeared to have accrued from about December 2009. The liquidator’s affidavit offered the opinion that the company’s day-to-day operations were probably partly financed by the unpaid taxes. The court noted, however, that the directors had not tried to justify the non-payment on that basis, and the arrears were not on the scale of “huge arrears” considered in an earlier case.
The court also considered the company’s return to profit in the year to May 2011, after losses in the previous two years. Martin Gill had injected €35,000 of capital in or about 2010 and was seeking to raise a further €30,000 around the time of the liquidation. The company was also owed approximately €50,000 by debtors. In February 2012, Martin Gill voluntarily proposed paying the Revenue debt by instalments over two years; the Revenue Commissioners rejected the proposal, after having made several earlier attempts to engage with the company about its tax liabilities.
The judge described the directors’ conduct as “highly reproachable” but concluded that the arrears, the voluntary repayment proposal and the efforts to support the company with capital did not establish the dishonesty or irresponsibility required for restriction orders. The court said it was not satisfied that it was required to make an order against either director and declined to do so.
The judgment separately addressed the timing of the proceedings. The liquidator said he made his first report to the Director of Corporate Enforcement on 16 October 2012; the notice of motion issued on 8 January 2013, before the statutory period for applying had begun. The court rejected Martin Gill’s contention that this required dismissal or otherwise invalidated the proceedings. It agreed that bringing an application before the statutory timeframe did not, on its own, invalidate it.