The High Court made five-year restriction declarations against Emilio Balzarini and Prescilla Balzarini, former directors of Sallyview Estates Limited, which is in liquidation. But it refused liquidator Pearse Farrell’s separate claim for €42,267.50 in investigation costs, ruling that the statutory provision allowing recovery of that kind of remuneration did not apply to an application already before the court.
Ms Justice Finlay Geoghegan delivered judgment on 3 December 2007. Farrell had applied under section 150 of the Companies Act 1990 for declarations restricting the respondents from acting as company directors or secretaries, or taking part in company formation, for five years unless the relevant statutory requirements were met.
The respondents initially opposed the application. In July 2007, their Italian lawyer told Farrell they no longer intended to defend it. They were unrepresented at the hearing on 5 November 2007. Having considered Farrell’s original affidavit and the respondents’ changed position, the judge said the court was bound to make the declarations sought, and did so.
The court also ordered the respondents jointly and separately to pay the costs of the application, with those costs to be taxed if the parties could not agree. That order followed the usual rule that costs follow the event and the version of section 150(4B) in force when the motion was issued in March 2006.
The separate €42,267.50 claim covered the liquidator’s and his staff’s time investigating matters for a report to the Director of Corporate Enforcement and for the restriction application. The judge had reserved her decision on whether those investigation costs could also be recovered.
A 2006 amendment to section 150(4B), which came into force in January 2007, expressly allowed courts to order directors to pay certain investigation and evidence-gathering costs, including attributable remuneration and expenses. But the judge held that the amendment did not apply to an application already under way. The motion in this case had been issued in March 2006, before the amendment was enacted.
Applying the presumption against retrospective legislation, the judge found no clear indication that the Oireachtas intended the amended provision to govern existing applications. She therefore refused the investigation-cost claim. The ruling left in place the restriction declarations and the separate order for the costs of the application.