The High Court has declined NAMA/NALM’s request to revise part of an earlier judgment concerning affidavit evidence in proceedings about Middleview Ltd., finding that the evidence still left the court with a misleading impression.
In a judgment delivered on 29 January 2016, Mr Justice Cregan said the petitioner was not asking him to revisit the earlier decision on the costs of preparing company accounts. It sought reconsideration of findings that paragraphs in an affidavit by NAMA/NALM asset recovery manager Mr Malbasha were inaccurate and misleading. The judge said a court may reverse a decision before its order is drawn up and perfected, but should be reluctant to do so.
The dispute concerned the timing and effect of events in March and April 2014. The court found that Middleview Ltd. was struck off the register on 28 March 2014 and dissolved on 2 April, when notice was published. NAMA/NALM executed a deed appointing receivers on 28 March. The receivers wrote to the company’s directors on 31 March, but later learned from the Companies Registration Office that the company had been struck off and dissolved. The judgment said the date when they learned this was not established in the evidence.
The judge identified errors in the petition and the grounding affidavit of Margaret Magee, including incorrect dates for the strike-off, dissolution and deed of appointment. He also noted that Mr Kelleher’s affidavit gave 27 March as the appointment date, while the deed was dated 28 March.
In his first affidavit, Mr Malbasha said the petitioner had attempted to appoint receivers before the company was struck off, but the appointment could not proceed. He also said receivers had not been appointed before the strike-off. The judge said those statements, read alongside the petition and Ms Magee’s affidavit, conveyed that the company had been struck off before receivers were appointed. He found instead that receivers were appointed on the same day as the strike-off, acted by writing to the directors, and only later learned they could not proceed.
Mr Malbasha’s second affidavit offered a clarification after Mr Kelleher’s evidence and correspondence were produced. It contained another incorrect strike-off date and did not state when notification had been lodged with the Companies Registration Office. The judge accepted that Mr Malbasha did not intend to mislead, but said the combined errors nevertheless misled the court about what had happened.
Having reconsidered the petition, affidavits and submissions, the judge said he did not consider it necessary or appropriate to review this part of the earlier judgment. This judgment addresses only the request to revisit those findings; it does not alter the earlier account-costs decision.