Dev Oil and Gas Ltd -v- Companies Acts, [2008] IEHC 252 (2008)

Docket Number:2002 370 COS
Party Name:Dev Oil and Gas Ltd, Companies Acts
Judge:Finlay Geoghegan J.
 
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THE HIGH COURT2002 370 COSIN THE MATTER OFDEV OIL AND GAS LIMITED (IN LIQUIDATION)AND IN THE MATTER OFTHE COMPANIES ACTS 1963-2001BETWEENJ.W.R JACKSONAPPLICANTANDVIVIAN DEVLINRESPONDENT JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 21st day of July, 2008 The applicant is the Official Liquidator of Dev Oil and Gas Ltd. ("the Company"). He was so appointed by order of the High Court on 11th September, 2002.The respondent and Ms. Sonia McCooey were the Directors of the Company at the date of commencement of the winding up.By motion issued on 2nd August, 2007, the applicant sought a number of reliefs against the respondent and also an order pursuant to s. 150 of the Companies Act, 1990, as amended, restricting Ms. McCooey from acting as a Director or Secretary of a company or engaging in the formation or promotion of a company for a period of five years.The application was served on both the respondent and Ms. McCooey. The matter was adjourned from time to time by the High Court, at least on one or more occasion at the request of counsel then appearing for the respondent and Ms. McCooey. The applications against the respondent and Ms. McCooey were put in for hearing on Monday 17th December, 2007. On that day, counsel appeared on the instruction of Wells O'Carroll, Solicitors, who had appeared for the respondent and Ms. McCooey. Counsel informed the court that she was appearing as a matter of courtesy and for the purpose of informing the court that neither she nor her solicitors had any further instructions from the respondent and Ms. McCooey to defend the application. Counsel also informed the court that, pursuant to a prior direction given by the court, her solicitor was now in a position to confirm to the court that the respondent was aware that the proceedings were before the Court on 17th December, 2007, and that if he did not appear on that day that they were likely to be heard in his absence. An undertaking was given that Mr. Callanan, solicitor, of Messrs. Wells O'Carroll, Solicitors, would file an affidavit on or before 19th December, 2007, confirming the facts in relation to the respondent's knowledge of the application of which counsel had informed the court. Such affidavit has been filed.In those circumstances, I proceeded to hear the application in the absence of the respondent, as it appeared to me that he had been properly served, had the benefit of advice from solicitors and appeared to have made a decision not to appear in court to defend the application. At the end of the hearing, I determined the application against Ms. McCooey and made the declaration requested pursuant to s.150 of the Companies Act, 1990. I reserved my decision on the applications against the respondent to permit me to consider the facts in the affidavit of the applicant, the exhibits referred to, and the law to which I have been referred in submission by counsel for the applicant.The reliefs pursued on behalf of the applicant against the respondent at the hearing were those in paras. 1, 2, and 4 of the Notice of Motion. These are:"1. A Declaration that the Company did not cause to be kept proper books of account within the meaning of Section 202 of the Companies Act 1990 as amended.2. An Order directing Vivian Devlin, a director of the Company, be held personally liable for the debts and any other liabilities of the Company pursuant to Section 204 of the Companies Act 1990 as amended.3. An Order pursuant to Section 160 of the Companies Act 1990 as amended disqualifying Vivian Devlin from acting as a director or secretary of a company or engaging in the formation or promotion of a company for such period as this honourable Court deems fit."As appears, they fall into two parts; the connected reliefs relating to ss. 202 and 204 of the Companies Act, 1990 as amended, and the relief pursuant to s. 160 of the Act of 1990.Sections 202 and 204Section 202 of the Act of 1990, obliges a company to cause proper books of account to be kept. Insofar as relevant, it provides:"202.(1) Every company shall cause to be kept proper books of account, whether in the form of documents or otherwise, that-(a) correctly record and explain the transactions of the company,(b) will at any time enable the financial position of the company to be determined with reasonable accuracy . . .(3) Without prejudice to the generality of subsections (1) and (2), books of account kept pursuant to those subsections shall contain - . . .(b) a record of the assets and liabilities of the company,(c) if the company's business involves dealing in goods -(i) a record of all goods purchased, and of all goods sold (except those sold for cash by way of ordinary retail trade), showing the goods and the sellers and buyers in...

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