Fitzpatrick (Liquidator of Bohergar Developments Ltd) v Cuirt Monard Management Company Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Michael White
• Judgment Date: 21 January 2014
• Neutral Citation: [2014] IEHC 136
• Court: High Court
• Date: 21 January 2014

[2014] IEHC 136

THE HIGH COURT

[No. 506 Sp./2013]

Fitzpatrick (liquidator of Bohergar Developments Ltd) v Cuirt Monard Management Co Ltd & Anor

IN THE MATTER OF THE COMPANIES ACT 1963 - 2012 AND IN THE MATTER OF SECTION 280 OF THE COMPANIES ACT 1963 AND IN THE MATTER OF SECTION 290(1), (2), (3) AND (8) OF THE COMPANIES ACT 1963

BETWEEN

ANTHONY J. FITZPATRICK IN HIS CAPACITY AS LIQUIDATOR OF BOHERGAR DEVELOPMENTS LIMITED (IN VOLUNTARY LIQUIDATION)

APPLICANT

AND

CUIRT MONARD MANAGEMENT COMPANY LIMITED

RESPONDENT

SOUTH TIPPERARY COUNTY COUNCIL

NOTICE PARTY

COMPANIES ACT 1963 S290(1)

MULTI-UNIT DEVELOPMENTS ACT 2011 S1

MULTI-UNIT DEVELOPMENTS ACT 2011 S7

MIN FOR THE ENVIRONMENT & ORS v IRISH ISPAT LTD (IN VOLUNTARY LIQUIDATION) & JACKSON 2005 2 IR 338 2004 IEHC 278

Company Law - Voluntary Liquidation - Winding Up - Appointment of Liquidator - Application for Extension of Time - s. 290(1) of the Companies Act 1963 - Leave to disclaim the operation and maintenance of a sewage treatment plant- Assignment of Obligations - Responsibility for Property - Planning &Development - Planning Conditions-Multi Unit Development

Facts: The Applicant is Liquidator of Bohergar Developments Ltd, Company of which is in Voluntary Liquidation. The Applicant previously applied for and was granted extension of time to bring an application under s. 290(1) of the Companies Act 1963. The Applicant then issued a special summons seeking leave to disclaim the operation and maintenance of a sewage treatment plant and pumping station on lands at Monard, Co. Tipperary, which were the subject of a notification of grant of planning permission. The Applicant further sought an order vesting his estate and maintenance obligations and legal entitlements in Cuirt Monard Management Company Limited (the Respondent). The Applicant previously averred Inis Housing Association (the body responsible for the provision of the Social Housing part of the development) had taken over responsibility for the sewage treatment plant and the Director of Inis Housing Association refuted such averment. As part of planning permission to develop properties, Bohergar Developments Ltd was vested with certain responsibilities in respect of the waste water treatment system. The Applicant wrote to South Tipperary County Council (the Notice Party) advising he intended to disclaim the onerous obligations of the maintenance of the Waste Water Treatment Plant and associated issues and that these were to be assigned to the Respondent. The Notice Party wrote to the Applicant contending liability for the maintenance of roads and services within the estates shall remain with the Developer and their Successors until the Notice Party takes charge.

Mr. Justice Michael White stated it was important to distinguish between works undertaken to comply with conditions of planning permission under which the development has proceeded and ongoing maintenance. He cited Section 7 of the Multi-Unit Development Act 2011 ‘a developer and his successors are not exempt from compliance with planning conditions by reason of transfer of the common areas’. Judge Mr. Justice Michael White further stated Bohergar Developments Ltd, having been granted planning permission in December 2005, proceeded to develop the works on foot of the planning permission, sold properties and failed to discharge their responsibility to comply with the planning conditions which was a statutory responsibility and distinct from a licence.

Held by Mr. Justice Michael White where Company assets in Liquidation may be negligible or in the negative, that itself did not allow a Liquidator to disclaim responsibilities to have the development taken in charge. Mr. Justice Michael White further held although Pearse O”Shiel (Director of the Respondent and Director of Inis Housing Association) cooperated with the Liquidator and assisted in trying to keep the water treatment plant in operation, such did not act as an Estoppel, nor did it transfer the responsibility from the Applicant to the Respondent.

Mr. Justice Michael White held the Applicant and the Notice Party were to proceed to cooperate to activate the bond of €140,000, pursuant to condition No.6 of the planning permission granted.

Relief Refused.

1 1. The applicant was appointed liquidator of Bohergar Developments Limited (hereinafter called "the Company") on the 17 ^th April, 2012. He applied to the High Court for an extension of time to bring an application pursuant to s. 290(1) of the Companies Act 1963.

2 2. Section 290(1) of the Act of 1963 states:-

(1) Subject to subsections (2) and (5), where any part of the property of a company which is being wound up consists of land of any tenure burdened with onerous covenants, of shares or stock in companies, of unprofitable contracts, or of any other property which is unsaleable or not readily saleable by reason of its binding the possessor thereof to the performance of any onerous act or to the payment of any sum of money, the liquidator of the company, notwithstanding that he has endeavoured to sell or has taken possession of the property or exercised any act of ownership in relation thereto, may, with the leave of the court and subject to the provisions of this section, by writing signed by him, at any time within 12 months after the commencement of the winding up or such extended period as may be allowed by the court, disclaim the property.

3 3. Liberty was granted by order of 28 ^th August, 2013, to extend the time.

4 4. Subsequently, the applicant issued a special summons seeking leave to disclaim the operation and maintenance of a sewage treatment plant and pumping station on lands at Monard, Co. Tipperary, which were the subject of a notification of grant of planning permission on 14 ^th December, 2005, issued by South Tipperary County Council, planning permission reference No. 05/462.

5 5. The applicant further sought an order vesting the estate and maintenance obligations and legal entitlements of the applicant in the respondent. Pursuant to his application the applicant averred that Inis Housing-who own 10 units in the development- took it over and are currently attempting to...