The Supreme Court ordered the appeals brought in the names of two companies in liquidation struck out, but stayed that order for three months to allow time for steps that might enable the appeals to proceed lawfully.
The judgment, delivered by Chief Justice Denham on 14 May 2013, concerned appeals by Amantiss Enterprises Limited and Wilbury Limited, both in liquidation, alongside Framus Limited. The appeals followed a High Court order dismissing the proceedings for delay on 19 July 2012.
The respondents argued that the two companies’ appeals should be struck out because their liquidator had not authorised them. They submitted that proceedings could not be maintained in court in the companies’ names without the liquidator’s authority. Some respondents also sought costs from Seamus Maye, and Readymix sought to vacate an existing stay of the High Court order.
The liquidator’s solicitors said he had not authorised the notice of appeal or its prosecution, did not support the appeal as being in creditors’ interests, and had offered to assign the claims to a shareholder. Maye and counsel for Framus argued that the liquidator had consented to the proceedings and had not objected when an appeal was discussed before the High Court judgment. The Supreme Court noted a factual conflict about consent. It also took account of a creditors’ meeting, where creditors were reported to favour continuing the appeal, and the liquidator’s absence from the hearing despite being on notice.
The court’s proposed order struck out the appeals of Amantiss and Wilbury but paused the effect of that order for three months. During that period, the High Court’s supervisory jurisdiction could be invoked and any resulting measures implemented. A party could apply to extend the period, but had to do so within the three months and provide affidavit evidence of timely steps and a realistic prospect that measures allowing the appeals to proceed lawfully could be achieved.
If measures were put in place, a person claiming lawful authority to conduct the appeals could apply to the Supreme Court for an appropriate order, on notice to the respondents who could oppose it. If no timely extension application was made, the appeals would be struck out. The judgment did not determine whether any later measures would be sufficient to allow them to proceed.