Farrell v Balzarini & Balzarini

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 03 December 2007
• Neutral Citation: [2007] IEHC 424
• Court: High Court
• Date: 03 December 2007

[2007] IEHC 424

THE HIGH COURT

No. 169 COS/2004

Farrell (Liquidator) v Balzarini

IN THE MATTER OF SALLYVIEW ESTATES LIMITED

(IN LIQUIDATION)

AND IN THE MATTER OF SECTION 150 OF THE COMPANIES ACT, 1990 AND SECTION 56

OF THE COMPANY LAW ENFORCEMENT ACT, 2001

BETWEEN/

PEARSE FARRELL, LIQUIDATOR

APPLICANT

AND

EMILIO BALZARINI AND PRESCILLA BALZARINI

RESPONDENTS

COMPANIES ACT 1990 S150

COMPANIES ACT 1990 S150(3)

COMPANY LAW ENFORCEMENT ACT 2001 S56

COMPANIES ACT 1990 S150(4B)

COMPANY LAW ENFORCEMENT ACT 2001 S41

MITEK HOLDINGS LTD (FORMERLY KNOWN AS ANTIGEN HOLDINGS LTD) v KACHKAR & MCCLELLAN-CARRIGAN UNREP FINLAY GEOGHEGAN 5.5.2005 2005 IEHC 160

INVESTMENT FUNDS, COMPANIES & MISCELLANEOUS PROVISIONS ACT 2006 S11

INVESTMENT FUNDS, COMPANIES & MISCELLANEOUS PROVISIONS ACT 2006 (COMMENCEMENT) ORDER 2007 SI 23/2007

INVESTMENT FUNDS, COMPANIES & MISCELLANEOUS PROVISIONS ACT 2006 S11(1)

MCLOUGHLIN, RE 1963 IR 465

TIPPERARY FRESH FOODS LTD (IN LIQUIDATION), O'RIORDAN v O'CONNOR 2005 1 IR 551

COMPANIES ACT 1990 S150(4A)

HAMILTON v HAMILTON 1982 IR 466

COMPANY LAW

Directors

Restriction - Costs - Amount of costs payable by respondent - Applicability of rule that âÇÿcosts follow event' - Whether liquidator entitled to costs of investigation - Whether section providing for costs of investigation applicable to application commenced prior to section coming into operation - Intention of Oireachtas -Mitek Holdings Ltd v Companies Act [2005] IEHC 160, (Unrep, Finlay Geoghegan J, 5/5/2005) and O'Riordan v O'Connor [2005] IEHC 96, [2005] 1 IR 551 considered - Re McLoughlin [1963] 1 IR 465 applied - Companies Act 1990 (No 33), s 150 - Investment Funds, Companies and Miscellaneous Provisions Act 2006 (No 41), s 11 - Application for costs granted save for costs of investigation (2004/169COS - Finlay Geoghegan J - 3/12/2007) [2007] IEHC 424

Farrell v Balzarini

1 Judgment of Ms. Justice Finlay Geoghegan delivered 3rd December, 2007.

2 The applicant was appointed official liquidator of Sallyview Estates Limited ("the Company") on 27th January, 2004.

3 The respondents were directors of the Company within twelve months of the date of commencement of the winding up.

4 By notice of motion issued on 29th March, 2006 the applicant sought a declaration pursuant to s. 150 of the Companies Act, 1990 that the respondents, should not for a period of five years be appointed to act in any way, whether directly or indirectly, as a director or secretary or be concerned or take part in the promotional formation of any company unless that company meets the requirements set out in sub-section (3) of s. 150 of the Companies Act, 1990 (as amended).

5 Initially the respondents sought to defend and oppose the application and affidavits were filed on their behalf by Irish solicitors who had entered an appearance in the application.

6 However, by letter of 11th July, 2007 an Italian lawyer representing the respondents informed the applicant that they were no longer seeking to defend the application under s. 150 of the Act of 1990. Thereafter, negotiations about the amount of costs payable by the respondents to the applicant took place. The negotiations have not been successful in reaching an agreement.

7 The respondents have discharged their Irish solicitors who were given liberty to come off record on the 5th day of November, 2007. In the course of the correspondence relating to costs the applicant, through his solicitors, put the respondents on notice that he was seeking the costs of the application and also the cost of investigating the matters the subject of the application, in the amount of €42,267.50 in respect of his remuneration. This was computed by reference to the time spent by the Official Liquidator and his staff investigating the matters the subject matter of the application for the s. 56 report to the Director of Corporate Enforcement and the subsequent application under s. 150 of the Act of 1990. The amount was computed by reference to the rate per hour charged by the Liquidator and those members of his firm who assisted him in investigating such matters.

8 At the hearing before me on 5th November, 2007 the respondents were not represented. The Liquidator in his affidavit of 5th October, 2007 has placed before the court the relevant correspondence.

9 At the hearing of the application on 5th November, 2007, I formed the view that having regard to the matters put before the Court by the Official Liquidator in his original grounding affidavit of 13th March, 2006, and having regard to the attitude now taken by the respondents, that they did not wish to defend the application, that the court was bound to make the declarations of restriction as sought and such orders were made.

10 I also decided that in accordance with the ordinary rule that "costs follow the event" and having regard to the provision for costs in s. 150(4B) of the Act of 1990 (as amended) which was in force at the date this motion was issued on 29th March, 2006 that the applicant was entitled to an order for the costs of the application against the respondents jointly and separately, such costs to be taxed in default of agreement.

11 I reserve my decision on the application for the...