The High Court has dismissed an investor's attempt to wind up Kasam Investments Ireland Limited over a €499,500 loan linked to a syndicated property development in Warsaw.
Mark Foran presented the petition in October 2012 after serving a statutory demand for repayment. The company accepted that €499,500 of his €500,000 investment had been recorded as a loan, with the remaining €500 used to acquire shares. However, it disputed that the loan had yet fallen due.
The investment formed part of a scheme which raised about €4.3 million from investors for a Polish property project. Kasam Investments Ireland Limited held shares in its Polish subsidiary, which acquired a development site in Warsaw. The planned development had not proceeded.
Foran said he had been told by the late Kevin Dawe that he would receive a 30% return within 18 months. He maintained that the loan was repayable on that basis.
The company relied on an investment memorandum which described an expected investment period of 18 months to two years but also stated that investors could not exit before units were sold and the fund liquidated. It argued that repayment was therefore tied to maturity of the project rather than a fixed date.
Ms Justice Laffoy said the parties had presented diametrically opposed accounts of what had been agreed. The terms governing repayment could not be determined from the affidavit evidence before the court.
The judge applied the established rule that winding-up proceedings cannot be used to enforce a debt which is genuinely disputed in good faith and on substantial grounds. The issue was not whether the company would ultimately defeat Foran's contractual claim, but whether there was a real dispute suitable for determination through ordinary proceedings.
Finding that threshold satisfied, the court dismissed the winding-up petition.