Gary Carolan and Niall Cosgrave v Ken Fennell

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 24 October 2005
• Neutral Citation: [2005] IEHC 340
• Docket Number: No. 48 COS/2004
• Court: High Court
• Date: 24 October 2005

[2005] IEHC 340

THE HIGH COURT

No. 48 COS/2004

CAROLAN & COSGRAVE v FENNELL

IN THE MATTER OF CMC (IRELAND) LIMITED

(IN VOLUNTARY LIQUIDATION)

AND

IN THE MATTER OF SECTION 152 OF THE COMPANIES ACT 1990

BETWEEN

GARY CAROLAN AND NIALL COSGRAVE

APPLICANTS

AND

KEN FENNELL

RESPONDENT

COMPANIES ACT 1990 S152

COMPANIES ACT 1990 S150

RSC O.15 r13

COMPANIES ACT 1990 S152(4)

MAXWELL INTERPRETATION OF STATUTES 12ED 293

FISHERIES CONSOLIDATION ACT 1959 S223A

FISHERIES (AMDT) ACT 1978 S9

FISHERIES (AMDT) ACT 1983 S4

DOCUMENT IMAGING SYSTEMS LTD, IN RE UNREP FINLAY-GEOGHEGAN 22.7.2005

COMPANIES ACT 1990 S150(4A)

COMPANY LAW ENFORCEMENT ACT 2001 S41

COMPANIES ACT 1990 PART VII CH 1

COMPANIES ACT 1990 S152(2)

COMPANIES ACT 1990 S152(3)

COMPANIES ACT 1990 S152(1)

COMPANIES ACT 1990 PART VII

COMPANY LAW: Directors

Restriction - Parties - Application by Director of Corporate Enforcement to be joined as notice party to proceedings - Court's inherent discretion to join parties - Whether party other than those set out in s.152(4) can be joined - Whether necessary to join Director of Corporate Enforcement - Issues which court will consider in determining application for declaration of restriction to be lifted - Companies Act 1990 (No. 33) - Director of Corporate Enforcement joined to proceedings

Facts: The Director or Corporate Enforcement (the Director) brought an application to be added as a notice party to the applicants’ application, pursuant to section 152 of the Act of 1990, seeking relief from the terms and conditions of an Order of the Court, granting a declaration of restriction in respect of the applicants. The applicants opposed the Director’s application, submitting that s. 152(4) prohibited the appearance on an application of any person other than those named therein.

Held by Finlay Geoghegan J. in joining the Director as a notice party: That section 152(4) did not preclude the court from joining such persons as it considered necessary or desirable in the interests of justice. In the circumstances of this case, it was necessary and desirable to join the Director as a notice party to the application.

Reporter: L.O’S.

Ms. Justice Finlay Geoghegan

1 On 4^th March, 2005, the High Court (Clarke J.) made a declaration of restriction pursuant to s. 150 of the Companies Act, 1990(as amended) in respect of each of Gary Carolan and Niall Cosgrave, the applicants herein.

2 By notice of motion issued on 22^nd April, 2005, the applicants brought an application pursuant to s. 152 of the Companies Act, 1990, seeking relief from the terms and conditions of the Order of the High Court of 4^th March, 2005. The applicants were directors of CMC (Ireland) Limited (in voluntary liquidation) ("the Company"). The application under s. 150 of the Act of 1990 was brought by Ken Fennell, the liquidator of the Company. He is named as the respondent to the application under s. 152 of the Act of 1990.

3 By a notice of motion issued on 19^th August, 2005, the Director of Corporate Enforcement ("the Director") brought an application to be added as a notice party to the application under s. 152 of the Act of 1990. This judgment is given in that application of the Director.

4 Counsel for the Director submits that this Court has jurisdiction to join the Director as a notice party pursuant to O. 15, r. 13 of the Rules of the Superior Courts, 1986 or otherwise; is not precluded from doing so by s. 152(4) of the Act of 1990 and by reason both of the statutory role and functions of the Director, the facts relied upon by the applicants and the matters which the Director considers should be brought to the attention of the Court that it is a proper application in which to exercise the Court's discretion to join the Director.

5 The applicants oppose the application of the Director. Counsel on their behalf relies on s. 152(4) as prohibiting the appearance on an application of any person other than those named therein.

6 The liquidator did not participate in the hearing of the Director's application. The Court was informed that the liquidator is not consenting to the application under s. 152 but does not propose putting any evidence before the Court in relation to the application.

7 Section 152 of the Act of 1990 provides:

8 2 "152.-(1) A person to whomsection 150 applies may, within not more than one year after a declaration has been made in respect of him under that section, apply to the court for relief, either in whole or in part, from the restrictions referred to in that section or from any order made in relation to him under section 151 and the court may, if it deems it just and equitable to do so, grant such relief on whatever terms and conditions it sees fit.

9 (2) Where it is intended to make an application for relief undersubsection (1) the applicant shall give not less than 14 days” notice of his intention to the liquidator (if any) of the company the insolvency of which caused him to be subject to this Chapter.

10 (3) On receipt of a notice undersubsection (2), the liquidator shall forthwith notify such creditors and contributories of the company as have been notified to him or become known to him, that he has received such notice.

11 (4) On the hearing of an application under this section the liquidator or any creditor or contributory of the company, the insolvency of which caused the applicant to be subject to this Chapter may appear and give evidence.

12 (5) Any liquidator who contravenessubsection (3) shall be guilty of an offence and liable to a fine."

13 Counsel for the applicants relies upon the maxim"expressio unius est exclusio alterius". Maxwell, The Interpretation of Statutes 1969 explains the maxim at p. 293 as follows:

"By the rule usually known in the form of its Latin maxim, mention of one or more things of a particular class may be regarded as silently excluding all other members of the class."

14 It is not disputed that it is appropriate to apply this rule as an aid to statutory construction. It was, for example, referred to by Keane C.J. in construing s. 223A of the Fisheries Consolidation Act,1959(inserted by s. 9 of the Fisheries (Amendment) Act, 1978, amended by s. 4 of the Fisheries (Amendment) Act, 1983) in Browne v. Ireland [2003] 3 IR 205.

15 Counsel for the applicants also referred to my decision inRe Document Imaging Systems (Unreported, High Court, 22 July, 2005) in which I concluded that the Oireachtas by the insertion of sub-s. (4A) to s. 150 of the Act of 1990 as provided in s. 41 of the Company Law Enforcement Act, 2001, intended that applications under s. 150 be brought by persons named in s. 150(4A) and not by any other person. Whilst I made no reference to the Latin maxim as such, I...