Gaultier v Registrar of Companies, Gaultier v Allied Irish Banks Public Ltd Company

• Jurisdiction: Ireland
• Judge: O'Donnell J.
• Judgment Date: 12 December 2019
• Neutral Citation: [2019] IESC 89
• Date: 12 December 2019
• Court: Supreme Court
• Docket Number: Appeal No.: 353/2012 Appeal No.: 449/2012 Appeal No.: 450/2012

BETWEEN/

ARNAUD D. GAULTIER

APPELLANT/APPLICANT

AND

THE REGISTRAR OF COMPANIES

RESPONDENT/RESPONDENT

AND

THE REVENUE COMMISSIONERS, THE MINISTER FOR FINANCE, LOIRE VALLEY LIMITED

NOTICE PARTIES

IN THE MATTER OF ARNAUD D. GAULTIER AND THE COMPANIES ACTS 1963-2009

AND

AND

BETWEEN/

ARNAUD D. GAULTIER

APPELLANT/INTENDED APPLICANT

AND

ALLIED IRISH BANKS PUBLIC LIMITED COMPANY

RESPONDENT/INTENDED RESPONDENT

[2019] IESC 89

O'Donnell J.

MacMenamin J.

Charleton J.

Appeal No.: 353/2012

Appeal No.: 449/2012

Appeal No.: 450/2012

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Company – Revenue – Company having claim against Revenue Commissioners – Company struck off register of companies – Appellant seeking orders to allow him to pursue claim

Facts: The appellant was the sole member of a limited company which imported wine. Due to events in 2006 it was alleged that the company had a substantial claim against the Revenue Commissioners, and the parties entered negotiations. These were unsuccessful and the company was in 2012 struck off the Register of Companies for failing to file a return. The appellant rather than following the statutory procedure to restore a company, had applied to the High Court in 3 separate proceedings for various orders. The matter now came on appeal before the Supreme Court.

Held by the Court, that the first two appeals would be dismissed. The first application to amend a statement of grounds was now moot and academic, and therefore not necessary for the Court to consider. In the second application, the decision of the High Court was impeccable and could not be faulted. However, in the third application, it was apparent that the blanket refusal to allow the issue of proceedings in the company’s name was too rigid, and the appeal would be allowed. Allied Irish Bank plc v. Aqua Fresh Fish Ltd. [2018] IESC 49 considered.

O’Donnell J. gave the judgment.

Judgment of O'Donnell J. delivered the 12th day of December, 2019.

1 These three appeals, which can be dealt with together since they are closely related, concern orders or applications made in a short period in 2012. The first appeal concerns an application made before Murphy J. on the 5th of July, 2012. The second relates to an application made before Laffoy J. on the 31st of July, 2012, and the third, and last, appeal concerns a short hearing in a vacation sitting before de Valera J. on the 9th of August, 2012. Each was an ex parte application in the High Court, and, accordingly, there was no appearance by, or on behalf of, the respective respondents or notice parties, either in the High Court or in this court.

2 Although these three appeals relate to a period of less than a month in July and August 2012, the background appears to be matters which occurred much earlier, although capable of being discerned only imperfectly from the limited papers before the court. Mr. Gaultier contends that he was the sole member of a single-member company, Loire Valley Limited, which may have had a claim against the Revenue Commissioners in respect of the business of the importation of wine in relation to events that occurred in 2006. It appears that there had been negotiation between the parties, resulting in the Revenue Commissioners making a substantial offer with a view to settlement which was, however, not accepted. The situation became, however, much more complicated, because it also appears that any claim would be that of the company, and Loire Valley Limited had been struck off the Registrar of Companies for failure to make annual returns with effect from the 6th of April, 2012.

3 There is a clear and reasonably simple procedure for seeking to restore a company to the Register, and this most commonly occurs when it is necessary to restore a struck-off company for the purposes of proceedings. Under s. 12B of the Companies (Amendment) Act 1982 (“the 1982 Act”), as amended by s. 46 of the Companies (Amendment) (No. 2) Act 1999, (now s. 738 of the Companies Act 2014), where a court application is necessary, an application is made to the High Court (and now, in certain circumstances, to the Circuit Court). The procedure is set out comprehensively in the leading texts: Hutchinson, Keane on Company Law (5th ed., Bloomsbury Professional, 2016), pp. 498 to 501; Courtney, The Law of Companies (4th ed., Bloomsbury Professional, 2016), pp. 2019 to 2043; Conroy, The Companies Act 2014: Annotated and Consolidated (Round Hall, 2018), pp. 972 to 983.

4 The procedure normally involves notice to interested parties: the Minister for Public Expenditure, the Revenue Commissioners and the Registrar of Companies, and it may, in an individual case, require advertisement and/or other notification to creditors. Where the reason for striking-off is the non-filing of statutory accounts, the application normally involves the preparation of annual returns and an undertaking to lodge such returns. However, it appears that this course was not taken by Mr. Gaultier, and in many ways these three appeals and other proceedings reflect his differing attempts to circumvent the requirement of proceeding in accordance with the relatively simple statutory procedure.

5 Prior to any of the applications giving rise to the three appeals before this court, it appears, from the documentation submitted, that an application had been made by Mr. Gaultier to the High Court and heard by Laffoy J. on the 18th of June, 2012. It appears that Mr. Gaultier sought leave of the court to issue proceedings on behalf of the company Loire Valley Limited which at that point stood dissolved. Since the company had no legal existence at that time, and since in any event there is a general rule, to which it will be necessary to refer in greater detail later in the judgment, that a company cannot represent itself, or be represented by a shareholder or director, or other interested party, it appears that the Central Office refused to accept the proceedings and Laffoy J., correctly, it would appear, refused to grant leave to bring the proceedings. There was a clear statutory procedure which would permit the restoration of the struck-off company, and thereafter it ought to have been possible to prosecute any claim. Instead of taking that step, Mr. Gaultier sought to recast his proceedings in a fashion which might avoid the difficulty posed by both the dissolution of the company and the question of the representation of the company.

The first proceedings: Gaultier v. Registrar of Companies, Revenue Commissioners and the Minister for Finance and Loire Valley Ltd. , Supreme Court Appeal No.: 353/2012

6 Again, some of the background must be gleaned from the papers, but it appears that on the 5th of July, 2012, Mr. Gaultier made an application in his own name for leave to seek judicial review directed to the Registrar of Companies and seeking, it appears, to require the Registrar to restore Loire Valley Limited to the Register.

7 According to the report prepared by the High Court judge of the subsequent proceedings, the judge (Murphy J.) pointed out that there was a proper procedure for reinstating the company, but Mr. Gaultier “insisted, without specifying dates, that he did not have the time to do so as the day of the application was the last day in which he could apply for a review of the refusal by the Registrar of Companies”. On that basis, the court, taking into consideration that the applicant was French, with a good knowledge of English but with a limited appreciation of the procedure, granted the leave sought, which simply meant that the applicant had liberty to bring proceedings in the nature of judicial review.

8 The matter then appeared in the Judicial Review List heard by a registrar of the High Court who, on the 10th of July, 2012, adjourned the motion for directions to the 2nd of October of the same year for mention. It appears, from correspondence between Mr. Gaultier and the registrar, that Mr. Gaultier was anxious to seek an injunction seeking to compel the restoration of the company to the Register on an interim basis.

9 It might be observed at this point, however, that while the judicial review proceedings themselves were unusual and faced formidable difficulties, an application for an interim or interlocutory injunction pending the hearing of any such review requiring the restoration of the company to the Register would have been extraordinary. However, the court registrar, acting as a deputy master, gave liberty to issue a notice of motion grounded in an affidavit seeking injunctive relief in the usual way. It was anticipated that the motion would be served on the other parties, who could then attend for the hearing.

10 What occurred next is somewhat confused, but it appears that Mr. Gaultier appeared in court on the 19th of July before Murphy J. to make an application. He had a notice of motion dated the 18th of July, 2012, with a blank for the return date for the date in July. The body of the motion sought:-

“the following interim injunctive reliefs: (a) voiding the dissolution of the Third Notice Party; (b) restoring the name of the third Notice Party on the Register of Companies and (c) additional just reliefs.” (Emphasis in original).

The affidavit, which was sworn on the 17th of July, referred to a conversation with counsel for the respondents on the 10th of July (this being, it appears, the date on which the matter appeared before the deputy master) and recording that it was “outlined that the word “injunctive” slipped out of the section “corrective reliefs” of the statement of ground. The word “injunctive” should apply to the said reliefs J & K”. Paragraph 5 of the affidavit recorded that “[ t]he Court agreed on amending the statement of ground/applying for the said injunctive relief by issuing a Notice of Motion and new Grounding Affidavit”.

11 This, it should be said, although a little hard to follow, appears to...