Cerise Glen Ltd v Companies Acts

• Jurisdiction: Ireland
• Judge: Ms. Justice Stack
• Judgment Date: 25 October 2022
• Neutral Citation: [2022] IEHC 587
• Court: High Court
• Docket Number: Record No. 2005/309 COS

In the Matter of Cerise Glen Limited (In Liquidation)

and

In the Matter of the Companies Acts, 1963 – 2003

Between

George Maloney, Liquidator of Cerise Glen Limited (In Liquidation)

Applicant

and

Joseph Casey and Sharon Casey

Respondents

[2022] IEHC 587

Record No. 2005/309 COS

THE HIGH COURT

Property – Possession – Companies Act 2014 s. 673 – Applicant seeking an order requiring all parties having notice of the order to immediately surrender possession and control of the property to the applicant – Whether the property was one to which the company was prima facie entitled

Facts: The applicant, Mr Maloney, the liquidator of Cerise Glen Ltd (in liquidation), applied to the High Court claiming the following orders: (a) an order pursuant to s. 596(2) of the Companies Act 2014, s. 608(2) of the 2014 Act and/or the inherent jurisdiction of the High Court requiring all parties having notice of the order to immediately surrender possession and control of the property known as Number 8, Farrin Carrig, Duncannon, County Wexford (the Property) to the liquidator; (b) a declaration pursuant to s. 602(2) of the 2014 Act, s. 615(1) of the 2014 Act and/or the inherent jurisdiction of the High Court that all leases, licenses and other arrangements providing for occupation, possession and/or control of the Property by any party other than the liquidator are void and of no effect; (c) an order pursuant to s. 596(2) of the 2014 Act, s. 608(2) of the 2014 Act and/or the inherent jurisdiction of the High Court requiring all parties having notice of the said order to immediately deliver up to the liquidator all keys, alarm codes and/or other security and access devices in respect of the Property; (d) an order pursuant to s. 596(2) of the 2014 Act, s. 671(4) of the 2014 Act and/or the inherent jurisdiction of the High Court requiring all parties having notice of the said order to immediately provide details to the liquidator, including all relevant documentation, of all purported leases, licences or other arrangements providing for occupation of any portion of the Property; (e) an order pursuant to s. 596(2) of the 2014 Act, s. 671(4) of the 2014 Act and/or the inherent jurisdiction of the High Court requiring all parties having notice of the said order to immediately provide details to the liquidator, including all relevant documentation, of all payments received or receivable in respect of any portion of the Property in the period since 7 November 2005; and (f) an order pursuant to s. 596(2) of the 2014 Act, s. 608(2) of the 2014 Act and/or the inherent jurisdiction of the High Court requiring all parties having notice of the order immediately to transfer to the plaintiff all payments received in respect of any portion of the Property in the period since 7 November 2005. Notwithstanding the various references to s. 596(2) of the 2014 Act in the notice of motion, the liquidator in his oral submissions invited the Court to make its order under s. 673 of the 2014 Act, in light of the judgment of the Court (Keane J) in Kirby v Google Ireland [2020] IEHC 196, which was delivered after the notice of motion was issued. The application was brought, in effect, to enforce a series of related agreements which had been approved by the Court (Finlay Geoghegan J) as long ago as 2009.

Held by Stack J that the Property was not one to which Cerise Glen Ltd was “prima facie entitled” and was held by one of the directors in another capacity. While his precise capacity was not proven in the course of the application, Stack J held that it was clear that the first respondent, Mr Casey, held the Property either as executor of the estate of Mrs Casey, deceased, or as the sole beneficiary who was either registered as full owner or entitled to be registered as such. Stack J found that there was also a doubt as to whether the section could apply to choses or things in action enjoyed by a company in liquidation and as to whether this summary procedure could be used to resolve the type of dispute which existed in this case.

Stack J held that, as a result, the respondents could not be compelled to deliver up possession of the Property pursuant to s. 673 of the 2014 Act. Stack J refused all of the relief sought.

Relief refused.

JUDGMENT of Ms. Justice Stack delivered on the 25 ^th day of October, 2022 .

Introduction

1 . This application is brought by the Liquidator of Cerise Glen Ltd (in liquidation) (“the Company”), and relates to the property known as Number 8, Farrin Carrig, Duncannon, County Wexford (“the Property”), and which the Liquidator says is registered in Folio 1224F of the Register, County of Wexford.

2 . In these proceedings, the Liquidator claims the following orders:-

• (a) An order pursuant to s. 596(2) of the Companies Act 2014 (“the 2014 Act”), s. 608(2) of the Companies Act 2014 and/or the inherent jurisdiction of the High Court requiring all parties having notice of the order immediately surrender possession and control of the Property to the Liquidator;

• (b) A declaration pursuant to s. 602(2) the 2014 Act, s. 615(1) of the Companies Act 2014 and/or the inherent jurisdiction of the High Court that all leases, licenses and other arrangements providing for occupation, possession and/or control of the Property by any party other than the Liquidator are void and of no effect;

• (c) An order pursuant to s. 596(2) of the 2014 Act, s. 608(2) of the 2014 Act and/or the inherent jurisdiction of the High Court requiring all parties having notice of the said order immediately to deliver up to the Liquidator all keys, alarm codes and/or other security and access devices in respect of the Property;

• (d) An order pursuant to s. 596(2) of the 2014 Act, s. 671(4) of the 2014 Act and/or the inherent jurisdiction of the High Court requiring all parties having notice of the said order immediately to provide details to the Liquidator, including all relevant documentation, of all purported leases, licences or other arrangements providing for occupation of any portion of the Property;

• (e) An order pursuant to s. 596(2) of the 2014 Act, s. 671(4) of 2014 Act and/or the inherent jurisdiction of the High Court requiring all parties having notice of the said order immediately to provide details to the Liquidator, including all relevant documentation, of all payments received or receivable in respect of any portion of the Property in the period since 7 November 2005;

• (f) An order pursuant to s. 596(2) of the 2014 Act, s. 608(2) of the Companies Act 2014 and/or the inherent jurisdiction of the High Court requiring all parties having notice of the order immediately to transfer to the plaintiff all payments received in respect of any portion of the Property in the period since 7 November 2005.

3 . The Liquidator at present does not seek the other orders sought in the notice of motion which issued on 23 December 2019, namely:

The Liquidator's application is to adjourn that portion of the motion.

• – orders restraining trespass, and prohibiting any interference or obstruction of the Liquidator, his servants and/or agents in their efforts to take possession of, secure, sell or rent the Property,

• – orders prohibiting all parties having notice of the making of the order from holding themselves out as having any entitlement to sell, rent, or otherwise grant any entitlement of possession of any portion of the Property

• – an order prohibiting all persons having notice of its making from making contact with any current or prospective occupant or purchaser of any portion of the Property without the prior written consent of the Liquidator.

4 . Furthermore, notwithstanding the various references to s. 596(2) of the 2014 Act in the notice of motion, the Liquidator in his oral submissions invited the court to make its order under s. 673 of the 2014 Act, in light of the judgment of this Court (Keane J.) in Kirby v. Google Ireland [2020] IEHC 196, which was delivered after the notice of motion was issued.

5 . In Kirby v. Google Ireland, Keane J. found (at para. 37) that the purpose of ss. 596(1) and (2) was not to provide for a summary mode of recovery by a liquidator of possession of company property but was intended to protect a liquidator from:-

“any claim for loss or damage where the liquidator has taken, or retained, custody of property, which appears to be that of the company but is later found not to be”.

6 . Keane J. held that the power of a liquidator to recover company property on a summary basis was contained in s. 673 of the 2014 Act which provides, in material part:

“(1) In a winding up of a company, on notice in writing being given by the liquidator requiring him or her to do so, any:

(a) contributory for the time being on the list of contributories;

(b) trustee;

(c) receiver;

(d) banker; or

(e) agent or officer;

of the company shall, within such period as is specified in the notice, pay, deliver, convey, surrender or transfer to or into the hands of the liquidator any money, property, books or papers which happen to be in his or her hands for the time being and to which the company is prima facie entitled”

(2) The court may exercise the following power:

(a) of its own motion; or

(b) on the application of the liquidator;

at any time after the appointment of a provisional liquidator, the making of a winding-up order or the passing of a resolution to wind up a company voluntarily.

(3) That power of the court is to require a person referred to in any of paragraph (a) to (e) of subsection (1) to pay, deliver, convey, surrender or transfer forthwith, or within such period as the court directs, to the liquidator any money, property or books and papers in his or her hands to which the company concerned is prima facie entitled.”

7 . As noted by Keane J., the power of the court can only be exercised as against certain categories of person and only in respect of...