The Court of Appeal has dismissed an appeal by Declan and Damien O’Donoghue against restoring Lodge Gaven Limited to the register, while directing that the costs of the original application be assessed on the Circuit Court scale.
In a judgment delivered on 12 December 2023, Mr Justice Binchy said Everyday Finance DAC had shown that the company’s 2012 dissolution disadvantaged it as a creditor. The court found restoration was likely necessary for a receiver appointed under the company’s mortgage debenture to convey the company’s real property.
Lodge Gaven was struck off after failing to file annual returns. Everyday applied in 2022 to restore it, saying it intended to enforce security transferred to it by Allied Irish Banks and realise the company’s assets. The High Court granted the application and directed the directors to file outstanding returns and deliver outstanding company statements to the Revenue Commissioners.
The former directors argued that restoration was unnecessary because AIB had already demanded payment, and that the costs and late filing fees would prejudice them. The Court of Appeal agreed that Everyday did not need restoration merely to appoint a receiver: the debenture allowed appointment following default, and the court said an earlier AIB demand could be relied on. But it found the receiver was an agent of the company and that it was highly unlikely the receiver could dispose of the company’s real property unless the company was restored.
The court noted that the evidence identifying the company’s property was limited. No title documents were provided, and the debenture did not identify specific property. Still, the judge concluded on the evidence and submissions that the company owned real property and Everyday wished to realise it against the debt.
The directors also relied on late filing fees of €16,860 and the delay in bringing the restoration application. The court said the fees arose from the directors’ failure to meet statutory filing obligations and weighed that claimed prejudice against the company’s reported debt of €2,877,901.29 as of 3 August 2022. It rejected the argument that proceedings against a guarantor meant the lender was pursuing the debt improperly.
The Court of Appeal therefore upheld the restoration and related filing orders. It varied the High Court costs order so the application costs are adjudicated on the Circuit Court scale. Everyday was also awarded its appeal costs, subject to the appellants’ right to make written submissions within 14 days seeking a different order; Everyday may reply within a further 14 days.