Judgment: 2017-03-01 · Court archive

High Court appoints examiner to two companies despite material non-disclosure

The court found that a dispute over hotel booking equipment should have been disclosed, but declined to dismiss the examinership petition and confirmed Neil Hughes’s appointment.

High Court · [2017] IEHC 156

Who, what, where, when and why

Who
  • Regan Development Limited
  • McGettigan Limited
  • OCM EmRu Debtco DAC
  • Neil Hughes
  • James McGettigan
What

The court found that a dispute over hotel booking equipment should have been disclosed, but declined to dismiss the examinership petition and confirmed Neil Hughes’s appointment.

Where

Places mentioned in the report

  • Swords Road
  • Regency Hotel
  • Queen Street, Dublin 7
  • Bray
  • Dublin 7
When

Judgment:

Other dates in the report
  • 20 January 2017

    OCM argued that the petition and supporting affidavit failed to disclose a dispute over ownership of the hotel’s booking equipment and system. The dispute arose after a meeting on 20 January 2017, when company director James McGettigan threatened to remove the equipment. He later acknowledged making the threat but said he had no intention of carrying it out. The court found the matter was material because the receiver believed the hotel’s booking system might be removed, which could affect the hotel’s ability to trade and assumptions in the independent expert’s report.

Why

Reasons reported in the judgment

The High Court confirmed Neil Hughes as examiner of Regan Development Limited and McGettigan Limited, concluding that material information had been omitted from the examinership petition but that the omission did not justify refusing to hear it. The court also found no evidence that the petition had been brought for an improper purpose.

The High Court confirmed Neil Hughes as examiner of Regan Development Limited and McGettigan Limited, concluding that material information had been omitted from the examinership petition but that the omission did not justify refusing to hear it. The court also found no evidence that the petition had been brought for an improper purpose.

The application followed a petition filed on 23 January 2017. Regan owns and operates the Regency Hotel on Swords Road, Dublin, while McGettigan owns a licensed premises on Queen Street, Dublin 7, and four retail units in Bray. The companies were agreed to be insolvent, but to have a reasonable prospect of survival if they could secure investment and restructure or resolve existing secured debt. OCM EmRu Debtco DAC, their first secured creditor, opposed the appointment and was owed about €25 million.

OCM argued that the petition and supporting affidavit failed to disclose a dispute over ownership of the hotel’s booking equipment and system. The dispute arose after a meeting on 20 January 2017, when company director James McGettigan threatened to remove the equipment. He later acknowledged making the threat but said he had no intention of carrying it out. The court found the matter was material because the receiver believed the hotel’s booking system might be removed, which could affect the hotel’s ability to trade and assumptions in the independent expert’s report.

The judge said the omission should have been disclosed. However, she concluded it was less serious than non-disclosure in an earlier case and that refusing to hear the petition would be a disproportionate response. The equipment remained in place; the court said it could not determine what had been agreed at a late-night meeting between McGettigan, his brother and the receiver.

OCM also argued that the petition was intended to let the McGettigan family retain ownership and control, and to give the companies time to refinance OCM’s debt. The judge accepted that examinership could not be used simply to protect shareholders from unsuccessful investments. But she said an examiner must consider possible investment and restructuring for the benefit of the enterprise and all relevant interests, including creditors and employees. The companies’ survival required both a resolution of secured debt and investment in hotel refurbishment.

The ruling concerned appointment of an examiner, not approval of any restructuring scheme. The examiner was not required to favour the family’s interests and would need to consider available investment and restructuring options. The judgment did not decide whether any proposed scheme would be fair to creditors.

Read the original court judgment

Something looks wrong?

Highlight the relevant passage or flag this article for review. Review requests do not immediately change the report.

Email a correction request

Request a review