Alba Radio Ltd v Haltone (Cork) Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Barron,O'Hanlon J.
• Judgment Date: 01 January 1996
• Neutral Citation: 1995 WJSC-HC 1786,1995 WJSC-HC 823
• Docket Number: No. 275/1994,[1994 No. 194 Cos.],???,[1994 No. 275]
• Court: High Court
• Date: 01 January 1996

1995 WJSC-HC 1786

THE HIGH COURT

???

ALBA RADIO LTD v. HALTONE (CORK) LTD

BETWEEN

ALBA RADIO LIMITED

PLAINTIFF

-v-

HALTONE (CORK) LIMITED

DEFENDANT

Citations:

COMPANIES ACT 1963 S245

COMPANIES ACT 1990 S126

COMPANIES ACT 1990 S251

COMPANIES ACT 1963 S311(8)

DUBLIN HEATING CO LTD V HEFFERON 1992 ILRM 51

COMPANY (CONSOLIDATION) ACT 1990 S33

COMPANIES ACT 1963 S245(1)

COMPANIES ACT 1963 S245(2)

COMPANIES ACT 1963 S245(3)

COMPANIES ACT 1963 S245(4)

Synopsis:

COMPANY

Affairs

Information - Procurement - Court - Powers - Summons - Issue - Examination of officer of company - Creditor's application for summons - Company not in liquidation - Whether enactment had retroactive effect - Companies Act, 1963, s. 245 - Companies Act, 1990, ss. 216, 251 - (Barron J. - 1/6/95) - [1995] 2 I.R. 170

|Alba Radio Ltd. v. Haltone (Cork) Ltd.|

STATUTE

Enactment

Effect - Retrospection - Intention - Absence - Existing procedure to compel director to be examined about affairs of company - Procedure applicable where company being wound up - New enactment extending procedure to director of company not being wound up - Application of new enactment not equivalent to applying that enactment retroactively - (Barron J. - 1/6/95) - [1995] 2 I.R. 170

|Alba Radio Ltd. v. Haltone (Cork) Ltd.|

1 Judgment of Mr. Justice Barron delivered the 1st day of JUNE, 1995.

2 The Plaintiff seeks relief under the provisions of Section 245 of the Companies Act, 1963as inserted by Section 126 of the Companies Act, 1990. The Plaintiff seeks an Order for the examination of one Michael Murphy together with further ancillary reliefs. As no winding-up Order has been made nor has any provisional Liquidator been appointed, the application is made by virtue of the provisions of Section 251 of the Companies Act, 1990.

3 The application is based upon an Affidavit of John Edwin Malin, a director of the Plaintiff. The Plaintiff obtained judgment in the United Kingdom on the 15th March, 1991 in respect of goods sold and delivered to the Defendant between the months of November 1989 and April 1990 for the sum of £40,097.02 sterling together with £175.00 sterling costs. Of the judgment sum, the sum of £39,086.35 sterling was for principal and the balance was for interest. That judgment was ordered to be enforceable within this jurisdiction by an Order of the Master dated the 25th November, 1992. The entire judgment remains unpaid.

4 It appears from this Affidavit that the Defendant company traded from premises at Grange Road, Douglas, Cork from 1985 to July, 1989 and that one of its principal directors was the said Michael A. Murphy. Since September 1989 the same premises have been used for the same type of business which uses the same telephone number and telephone listing as the Defendant company had done. The directors of this latter company are the said Michael Murphy and his wife.

5 The Defendant was struck off the register of companies on the 25th September, 1993 by reason of its failure to file annual returns. However, it was restored to the register by an Order of O'Hanlon J. made under the provisions of Section 311(8) of the Companies Act, 1963on the 7th November, 1994.

6 In the case of a company which is not being wound-up, it is necessary upon an application for relief pursuant to the provisions of Section 251 of the Companies Act, 1990to establish that the company concerned is unable to pay its debts and that the reason that it is not being wound-up is the insufficiency of its assets.

7 No Affidavit has been filed in reply. It is submitted that no proof has been put before the Court to show that the Defendant is unable to pay its debts or that the reason it is not being wound-up is the insufficiency of its assets. It is also submitted that the provisions of the Act do not have retrospective effect.

8 The evidence shows that the judgment obtained by the Plaintiff has not been satisfied at all and that such assets as may have belonged to the Defendant company have been transferred to the company presently using the same premises. In the absence of any denial of the facts alleged in the Affidavit of John Malin, I am satisfied that the company is unable to pay it debts and that the reason that it is not being wound-up is the insufficiency of its assets.

9 The Plaintiff is seeking pursuant to the provisions of Section 251 of the Companies Act, 1990to examine Michael Murphy pursuant to the provisions of Section 245 of the Companies Act, 1963. There is nothing new in that procedure. What is new is that the application can be made even though the company is not being wound-up. In effect what Section 251 is doing is to permit a form of procedure which existed before the passing of the Act to be adopted in slightly different circumstances. Admittedly until the Act was passed, it was necessary to put the company into liquidation or to have a provisional Liquidator appointed before the relief could be obtained. In my view that is not creating a retrospective effect to the section.

10 Whether or not an Act is retrospective in its effect is determined by the proper construction of the provisions of that Act. Where rights have been acquired or duties imposed in respect of completed transactions prior to the passing of the Act in question, then those rights or those duties cannot be affected by the Act unless it is to be retrospective in its operation. In the present case there is no right vested in Michael Murphy not to be examined under Section 245 of the Companies Act, 1963unless the company is being wound-up. Because the law has been altered as to the circumstances in which an application may be made under Section 245 and its provisions have been altered to some extent does not mean that the Act is being operated retrospectively.

11 In Dublin Heating Company Limited -v- Hefferon, 1992 I.L.R.M. 51, Murphy J. quoted the definition of retrospective legislation as being legislation which "takes away or impairs any vested right acquired under existing laws or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of transactions or considerations already passed." This is to be contrasted with a situation where part of the requisites for the action of a statute is drawn from a time antecedent to its passing. In that case Section 33 of the Company (Consolidation) Act, 1990 imposed a liability on the officers of a company which had not previously existed. He held that such liability could not be imposed for acts which had already taken place. To do so would have been to impose a retrospective effect which was not warranted by the wording of the Act.

12 The Plaintiff is seeking relief under four subsections of Section 245. In my view there is no reason why it should not obtain the relief which it seeks pursuant to the provisions of Section 245, subsections (1), (2) and (3). Subsections (1) and (2) are in identical terms to those originally enacted, while subsection (3) is in substantially the same form. Subsection (4) is a new provision under which the Court may require a person to be examined to provide before the examination takes place a statement of any transactions between him and the company of a type or class which the Court may...