Dublin City Council v Marble & Granite Tiles Ltd

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 16 October 2009
• Neutral Citation: [2009] IEHC 455
• Court: High Court
• Date: 16 October 2009

Dublin City Council v Marble & Granite Tiles Ltd

IN THE MATTER OF MARBLE AND GRANITE TILES LIMITED AND IN THE MATTER OF THE COMPANIES ACT 1963

BETWEEN

DUBLIN CITY COUNCIL

PETITIONER

AND

MARBLE AND GRANITE TILES LIMITED

RESPONDENT

[2009] IEHC 455

[No. 364 COS/2009]

THE HIGH COURT

WINDING UP

Petition

Replying affidavit filed in petition seeking order winding up - Application to strike out entirety of affidavit on grounds that it was scandalous, vexatious, unnecessary and abuse of process - Whether entirety or part of affidavit should be struck out - Court's jurisdiction to strike out - Whether affidavit deliberately calculated to embarrass and cause offence to petitioner - Whether winding up order should be made on foot of petition - Whether petitioner established that company unable to pay its debts - Whether limited company could be represented in court proceedings by its managing director - Whether respondent entitled to be heard to ensure no injustice perpetrated - Doherty v Minister for Justice [2009] IEHC 246, (Unrep, HC, McGovern J, 15/5/2009) distinguished; Battle v Irish Art Promotion Centre Ltd [1968] IR 252 approved - Rules of the Superior Courts 1986 (SI 15/1986) O 19, rr 27 and 28 and O 40, r 12 - Companies Act 1963 (No 33), ss 213, 214(a) and 216 - Order winding up company granted (2009/364COS - Laffoy J - 16/10/2009) [2009] IEHC 455

Dublin City Council v Marble & Granite Tiles Ltd

Facts: The petitioner presented a petition seeking an order that the respondent be wound up. A replying affidavit had been sworn, followed by a further affidavit. The petitioner sought to have a later affidavit struck out as scandalous, vexatious and an abuse of process. The issues arising for consideration related to whether a winding up order would be made on foot of the petition, whether the entirety or part of the affidavit sworn would be struck out and whether Mr. O'Gara, a director of the company, was entitled to represent the company at the hearing of the petition. The petitioner claimed to be a creditor of the company in the sum of €43,115.30, representing sums due on foot of court orders. A dispute had arisen between the parties as to the compulsory acquisition of a plot of land.

Held by Laffoy J. that the plaintiff had established that the company was unable to pay its debts and needed to be wound up. An order would be made winding up the company. As to the petitioner motion to strike out, certain paragraphs of the affidavit would be struck out and Mr. O'Gara would be given the benefit of the doubt as to his understanding of particular aspects of company law. Mr. O'Gara was permitted to speak in Court so that no injustice would be perpetrated.

Reporter: E.F.

RSC O.40 r12

PLANNING & DEVELOPMENT ACT 2000 S160

COMPANIES ACT 1963 S214(A)

COMPANIES ACT 1963 S214

PLANNING & DEVELOPMENT ACT 2000 S218

COMPANIES ACT 1963 S213

COMPANIES ACT 1963 S216

COMPANIES ACT 1963 S213(E)

DOHERTY v MIN FOR JUSTICE UNREP MCGOVERN 15.5.2009 2009 IEHC 246

DELANY & MCGRATH CIVIL PROCEDURE IN THE SUPERIOR COURTS 2ED 2005 PARA 18.61

BATTLE v IRISH ART PROMOTION CENTRE LTD 1968 IR 252

1 Miss Justice Laffoy delivered on the 16th day of October, 2009.

The proceedings

2 On 6 ^th July, 2009 Dublin City Council (the petitioner) presented a petition in this Court seeking an order that Marble and Granite Tiles Limited (the company) be wound up. The petition was returnable on 27 ^th July, 2009. On that day, counsel on behalf of the petitioner opened the petition and the evidence to support it. She also opened a replying affidavit which had been sworn on 19 ^th July, 2009 by Noel O'Gara (Mr. O'Gara), who is a director of the company. Mr. O'Gara appeared in person on that occasion and he complained that the replying affidavit had been produced in haste and he sought an opportunity for the company to respond more fully to the petition. On that occasion I adjourned the matter to the vacation sitting on 23 ^rd September, 2009 directing that any further affidavit on which the company wished to rely should be filed within three weeks. That direction was not complied with. The petitioner filed a further affidavit sworn on 11 ^th September, 2009 in response to Mr. O'Gara's affidavit of 19 ^th July, 2009. When the matter came on for hearing on 23 ^rd September, 2009 Mr. O'Gara had filed a further affidavit sworn on 21 ^st September, 2009 to which the petitioner, its officers and legal representatives took objection. On 23 ^rd September, 2009 the matter was adjourned to 12 ^th October, 2009 to give the petitioner an opportunity to deal with that affidavit.

3 The petitioner issued a notice of motion returnable for 12 ^th October, 2009 in these proceedings seeking an order under Order 40, rule 12 of the Rules of the Superior Courts 1986 (the Rules) either striking out the entirety of the affidavit sworn by Mr. O'Gara on 21 ^st September, 2009 on the grounds that it is scandalous, vexatious, unnecessary and an abuse of process of the Court or, alternatively, so much thereof as should be struck out on those grounds.

4 The petition and the motion were heard together on 12 ^th October, 2009. Mr. O'Gara appeared in person and purported to represent the company.

5 Three principal issues arise for determination by the Court in the proceedings, namely:

6 (a) whether a winding up order should be made on foot of the petition;

7 (b) whether the entirety or any part of the affidavit sworn by Mr. O'Gara on 21 ^st September, 2009 should be struck out; and

8 (c) whether Mr. O'Gara is entitled to represent the company on the hearing of the petition.

Whether a winding up order should be made

9 The petitioner brings the petition claiming to be a creditor of the company in the sum of €43,115.30, which sum represents:

10 (a) sums due by the company and Mr. O'Gara to the petitioner on foot of an order dated 9 ^th October, 2006 made by Hanna J. in proceedings in this Court (the High Court proceedings) under s. 160 of the Planning and Development Act 2000 (the Act of 2000) between the petitioner, as applicant, and the company and Mr. O'Gara, as respondents, (Record No. 2006 No. 114 MCA), being the sum of €1,000 in respect of measured costs and expenses incurred by the petitioner and the sum of €28,985.21 being legal costs certified by the Taxing Master on a certificate of taxation dated 16 ^th August, 2008; and

11 (b) sums due by Mr. O'Gara and the company to the petitioner on foot of an order made on 30 ^th March, 2007 in Circuit Court proceedings under the Act of 2000 between the petitioner, as plaintiff, and Mr. O'Gara and the company, as defendants, (Record No. 2007 No. 02366), being the sum of €1,825 in respect of non-legal costs and the sum of €8,737.61 being legal costs as certified by the County Registrar in a certificate of taxation dated 30 ^th May, 2008.

12 On 14 ^th May, 2009 the petitioner, in accordance with s. 214(a) of the Companies Act 1963 (the Act of 1963) served on the company a demand in...