The High Court ruled that a 48-hour deadline for a creditor to notify guarantors began when the creditor received an email about a meeting in an examinership, rather than when it received a posted letter the following day.
Ms Justice Finlay Geoghegan found that Padraic Tuffy Ltd received notice of the unsecured creditors’ meeting at about 12.36pm on 30 April 2013. The notice it served on company directors Shane O’Neill and Eamonn Cooke on the evening of 2 May was therefore outside the period required by the Companies (Amendment) Act 1990.
The application concerned Chiefs Café Ltd, which had presented a petition for the appointment of an examiner on 31 January 2013. Neil Hughes was appointed interim examiner that day and examiner on 12 February. He later arranged meetings for creditors and members to consider proposals for a scheme of arrangement on 3 May.
Padraic Tuffy was an unsecured creditor and held guarantees from the two directors. The examiner’s firm sent the company an email on 30 April with notice of the creditors’ meeting and related documents. The judgment records that receipt of the email was not disputed and that no affidavit for the creditor said it had not arrived around the time it was sent. The same material was also sent by prepaid post and received on 1 May.
On the night of 2 May, the creditor served each director with a notice offering to transfer its voting rights relating to the company’s scheme proposals, as required by section 25A where a creditor proposes to enforce a guarantor’s obligation. Because the meeting had less than 14 days’ notice, the statute required service within 48 hours after the creditor received notice of the meeting.
The creditor argued that the period should run from receipt of the posted notice, relying on court rules requiring meeting notices to be sent by post. The judge rejected that construction. She held that the statutory deadline ran from actual receipt, regardless of how the notice was sent. The court rules could not determine the meaning of the statute, and their postal requirement could be modified in appropriate circumstances.
The judgment decides when the 48-hour period began and finds that the creditor’s notice was late. It does not determine whether the scheme was approved or make a separate order on enforcement of the guarantees.