The High Court has refused two claims for priority payment from the assets of CTO Greenclean Environmental Solutions Limited, which is in liquidation. Mr Justice Quinn ruled on 21 April 2023 that a creditor’s claim was barred by an agreement giving the liquidator priority, while solicitor Fergus Applebe had no basis to charge the company for money he advanced to a former liquidator.
Louis J. O’Regan Limited, the petitioning creditor, sought priority under section 617 of the Companies Act 2014 for fees and expenses it said it incurred preserving and recovering company assets. Its claim related mainly to proceedings begun in 2014 against former directors and pension trustee companies over payments totalling €2.66 million. Those proceedings settled in 2021, with an aggregate €300,000 paid to the liquidator for the company.
The liquidator, Myles Kirby, said he took over the proceedings after being joined as an applicant in 2017 and that the creditor did not take further substantive steps. The creditor disputed the account of its contribution. The judge noted that the parties disagreed about what the creditor’s earlier activity had achieved, but found that a 2016 Deed of Acknowledgment of Priority resolved the application. Under its terms, the creditor agreed that the liquidator’s costs and expenses would rank ahead of any claim it might have against the company’s assets. The court refused the creditor’s application.
Applebe sought reimbursement of €27,675, which he said he had paid from his own resources toward fees owed to former liquidator Alan Fitzpatrick. An agreement made in February 2016 required the creditor to provide that money in escrow. The court’s orders that the sum be released to Fitzpatrick referred to it as held in escrow, but the judge found the creditor had not funded it and Applebe had advanced the money instead.
The judge ruled that the agreement placed the payment obligation on the creditor, not Applebe or the company. The court refused Applebe’s request for a declaration giving him priority under section 617 and said there was no basis to sanction payment from the company’s assets. The judge also noted that the notice of motion did not expressly seek reimbursement.
The liquidator’s application for final directions—including approval of his costs and remuneration, directions on company records, his discharge and the company’s dissolution—was not decided in this judgment. It is to be heard later. The creditor may make submissions on the amount of the liquidator’s claimed costs and remuneration at that hearing; the judge also said Applebe was not a creditor of the company.