The High Court ordered the winding-up of Albion Enterprises Limited after finding that its creditor, MCR Personnel Ltd., had proved the company was insolvent and unable to pay its debts. The order was made despite evidence that the National Asset Management Agency (NAMA) held security over the company’s assets and was enforcing it through statutory receivers.
MCR Personnel presented its petition on 6 January 2012, claiming €55,675 plus unascertained costs. It relied on a demand dated 17 November 2011, served on the company’s registered office. The company did not pay, secure or otherwise settle the amount claimed. The court said this meant the company was deemed insolvent under section 214 of the Companies Act 1963.
At the hearing on 12 March, the court found that the petitioning creditor had met the procedural requirements for a winding-up petition. It had proposed Kieran Wallace of KPMG as official liquidator, and he had consented to act if appointed. The petition had also been advertised in newspapers and the official gazette.
NAMA intervened and provided affidavit evidence that it had acquired bank assets connected to the company, including mortgages and a guarantee, and held security over all of the company’s assets. NAMA had appointed statutory receivers over assets covered by one mortgage on 24 February. The court was also told that receivers had been appointed over assets covered by another mortgage on 9 March. That latter appointment was reported to the court but was not supported by affidavit evidence.
The court said section 216(2) of the Companies Act 1963, inserted by the National Asset Management Agency Act 2009, required the court to establish whether the company had obligations relating to bank assets transferred to NAMA. If it did, NAMA had to receive a copy of the petition and be heard before a winding-up order could be made. Both requirements had been met. The petition had incorrectly stated that the company had no such obligations; the court said NAMA’s affidavit corrected that error.
The judge held that the existence of NAMA’s security alone was not a reason to refuse an order. A liquidator’s appointment would not displace statutory receivers or affect their powers. The judge found no suggestion that MCR Personnel had brought the petition for an ulterior motive and said its objective was to have its debt discharged.
The court therefore made the winding-up order, concluding that MCR Personnel was entitled to it as a matter of law. The judge noted that NAMA had separately demanded €59,269,335.79 in principal and interest, payable immediately, and observed that liquidation might not achieve the creditor’s objective as a matter of common sense. That observation did not alter the order.