Greendale Developments Ltd, Re, (No. 3)

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Hamilton C.J.
• Judgment Date: 09 December 1999
• Neutral Citation: 2000 WJSC-SC 3223
• Docket Number: [S.C. No. 130 of 1996]
• Date: 09 December 1999

FAGAN & MALONE v. McQUAID (IN RE GREENDALE DEVELOPMENTS)

IN THE MATTER OF GREENDALE DEVELOPMENT LTD.

(IN LIQUIDATION)

AND IN THE MATTER OF ARTICLE 40.3.1 and 2 OF THE

CONSTITUTION,

ARTICLE 6.1 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS,

AND ARTICLE 14.1 OF THE INTERNATIONAL COVENANT ON CIVIL

AND POLITICAL RIGHTS

BETWEEN:

STEPHEN FAGAN MAY MALONE

Applicants

and

LIAM McQUAID

Respondent

2000 WJSC-SC 3223

Hamilton C.J.

Denham J.

Barrington J.

Lynch J.

Barron J.

130/96

THE SUPREME COURT

Synopsis

PRACTICE AND PROCEDURE

Practice and Procedure

Application to set aside judgment; natural and constitutional justice; High Court had given judgment against applicants; applicants appealed to Supreme Court and then issued notice of motion seeking to have proceedings remitted for trial in High Court; motion and appeal listed for hearing on the same day; Supreme Court directed that motion would be dealt with first and if refused the appeal would be addressed; Supreme Court dismissed the appeal; applicants claiming that Supreme Court had decided against them on the appeal without having given them any proper opportunity to argue the issue; applicants seeking order setting aside or vacating judgment given by Supreme Court; whether Supreme Court has jurisdiction to rescind or to vary an earlier, final order of the Supreme Court; whether Supreme Court had failed to consider all the issues raised by the applicants; whether there had been a denial of fair procedures; Art. 34.4.1, 3 and 6 of the Constitution; s.1(1), Courts (Establishment and Constitution) Act, 1961.

Held: Supreme Court has jurisdiction to rescind or vary a final order of the Supreme Court, but only in exceptional circumstances and to protect constitutional rights; no such exceptional circumstances; no denial of fair procedures; application refused.

Fagan v. McQuaid - Supreme Court: Hamilton C.J., Denham J., Barrington J., Lynch J., Barron J. - 09/12/1999 - [2000] 2 IR 514 - [2001] 1 ILRM 161

The applicants were shareholders in a company which was the subject of a winding-up order. The liquidator had sought and been granted an order directing the applicants to repay certain monies belonging to the company. The applicants sought to have the case re-opened on the grounds that the manner in which the case had been originally dealt with contravened the principles of natural and constitutional justice. The applicants sought the rescission of the order by the Supreme Court dismissing the appeal. Hamilton CJ held that the issues the applicants had raised had been fully dealt with in the previous judgment. There was no breach of fair procedures and the application would be refused. Denham J and Barrington J, delivering separate judgments, held that there had been no breach of the principles of natural justice and the application should be dismissed.

Citations:

CONSTITUTION ART 40.3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6.1

INTERNATIONAL COVENANT ON CIVIL & POLITICAL RIGHTS ART 14.1

GREENDALE DEVELOPMENTS LTD, IN RE 1998 1 IR 8

COMPANIES ACT 1963 S298

COMPANIES ACT 1963 S8

SM BARKER LTD, IN RE 1950 IR 123

R V BOW STREET METROPOLITAN STIPENDIARY MAGISTRATE EX-PARTE UGARTE (NO 2) 1999 1 AER 577

CASSELL & CO V BROOME (NO 2) 1972 2 AER 849, 1972 AC 1136

COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961 S1(1)

CONSTITUTION ART 34.4.1

CONSTITUTION ART 34.4.3

CONSTITUTION ART 34.4.6

AG V OPEN DOOR COUNSELLING LTD (NO 2) 1994 2 IR 333

WOODS, IN RE 1970 IR 154

QUINN, STATE V RYAN 1965 IR 70

AG V RYANS CAR HIRE LTD 1965 IR 642

BELVILLE HOLDINGS LTD V REVENUE COMMISSIONERS 1994 1 ILRM 29

AINSWORTH V WILDING 1896 1 CH 673

SWIRE, IN RE 30 CH 239

AMPTHILL PEERAGE, THE 1977 AC 547

TASSAN DIN V BANCO AMBROSIANO SPA 1991 IR 569

WAITE V HOUSE OF SPRING GARDENS LTD UNREP BARRINGTON 26.6.1985 1985/6/1592

SYAL V HEYWARD 1948 49 TLR 476, 1948 2 AER 576

JONESCO V BEARD 1930 AC 298

KENNEDY V DANDRICK 1943 2 AER 606

BOSWELL V COAKES 1894 6 R 167

CONSTITUTION ART 34.4.2

CONSTITUTION ART 34.4.4

CONSTITUTION ART 34.4.5

TREATY OF ROME ART 177

MCGEE V AG 1974 IR 284

STATE RAIL AUTHORITY OF NEW SOUTH WALES V CODELFA CONSTRUCTION PROPRIETARY LTD 1981 150 CLR 29

WENTWORTH V WOOLLAHRA MUNICIPAL COUNCIL 1981–82 149 CLR 672

AUTODESK INC V DYASON (NO 2) 1992–93 176 CLR 300

1 Judgment delivered on the 9th day of December 1999 by Hamilton C.J.

2 This matter came before this Court pursuant to a Notice of Motion issued on behalf of the above named Applicants on the 8th day of January 1999 and grounded on the affidavit of Michael Hinkson, Solicitor for the Applicants and sworn on the same date in which the following orders and reliefs were sought:-

3 (1) Directions regarding the determination of whether the relief sought herein may be granted if there are sufficient grounds and, if so, the procedure to be followed to that end.

4 (2) An order setting aside/vacating the judgment herein given by the Supreme Court on the 20th day of February, 1997 on the grounds that the core issue addressed ( ultra vires) was decide by the Court without affording the Applicants herein any proper opportunity to argue the point - denial of natural/constitutional justice, in breach of Article 40.3 of the Constitution and Articles 6.1 and 14.1 of the European and of the U.N. Covenants, respectively.

5 The first named Applicant herein was a Director of and a Shareholder in a company Greendale Developments Limited (hereinafter referred to as "the Company") and the second named Applicant was a shareholder in the same company.

6 On the 3rd day of July 1995, the High Court made an order winding up the company on the ground that disputes between the said first named Applicant and another Director of the company, Mr. Burgess, rendered it " just and equitable" that such an order be made.

7 The High Court appointed Mr. Liam McQuaid, the Respondent herein (and hereinafter referred to as "the liquidator") to be the official liquidator.

8 On the 20th day of September 1995 a Notice of Motion was issued on behalf of the liquidator in which he claimed inter alia:-

9 (1) an order pursuant to the provisions of Section 298 of the Companies Act, 1963as amended directing the Applicants to repay on restore monies or property belonging to the company which had been either misapplied or retained by them or for which they had become liable or accountable to the company together with interest on these sums and compensation in respect of the alleged misapplication of these monies; and

10 (2) an injunction restraining the Applicants from disposing of the proceeds of Springfield.

11 The application made on behalf of "the liquidator"was heard by the President of the High Court (Costello P.) and he delivered judgment thereon on the 12th day of March 1996.

12 By order dated the 12th day of March the learned President ordered and adjudged that Stephen Fagan do pay to the official liquidator of the company the sum of £432,101.76 together with interest thereon at the rate of 8% per annum from the 3rd day of July 1995 to the date hereof in the sum of £23,960.93 making together the sum of £456,062.69 and the costs of the proceedings when taxed and ascertained and further ordered that Stephen Fagan, the first named Applicant herein, be restrained for a period of 6 months from the date thereof from dealing with, disposing of or dissipating his assets within the jurisdiction of this Court so as to reduce the net balance of the same below the sum of £400,000.

13 The learned President for the reasons set forth by him in his judgment made no order against May Malone, the second named Applicant herein.

14 By notice dated the 23rd day of April 1996, the first named Applicant herein and the first named Appellant in the Notice of Appeal served notice of appeal against the judgment and order of Mr. Justice Costello made on the 12th day of March 1996.

15 On the 11th day of October 1996, a Notice of Motion, grounded on the affidavit of the first named Applicant herein and sworn on the 24th September, 1996 was issued on behalf of the said Applicant in the said proceedings, seeking:-

16 i i. An order directing that these proceedings should be remitted for trial in the High Court at which the Appellants will be afforded a reasonable opportunity to prepare and present their defence and to obtain discovery of documents from the Respondents.

17 ii ii. In the alternative, an order giving the Appellants leave to adduce new evidence which was not readily available in the High Court - being Exhibit A to the grounding affidavit herein.

18 iii iii. Leave to amend the Notice of Appeal herein to add as follows -

19 the learned trial Judge erred in law and contravened the Appellants" rights under the Constitution and under the European Convention on Human Rights to a fair hearing (reasonable opportunity to prepare their defence and to brief Counsel) by fixing the date of trial to commence a mere three working days thereafter.

20 iv iv. Directions that the papers in this matter be sent to the D.P.P. to consider prosecution for perjury.

21 v v. An order discharging the Mareva-type injunction obtained herein against the Appellants unless Liam McQuaid gives his personal undertaking as to damages.

22 vi vi. Further and other relief.

23 vii vii. Costs.

24 The said Motion was adjourned to the hearing of the Appeal and both the Motion and the Appeal were listed for hearing on the same day, viz. the 18th day of December 1996.

25 On that day, the Court consisted of the Hon. Mr. Justice Blayney (presiding), the Hon. Mr. Justice Keane and the Hon. Mr. Justice Murphy.

26 It is alleged on behalf of the Applicant that shortly after the appeal was opened, the Court directed that the matters raised in the aforesaid Notice of Motion be dealt with first and that in the event of the decision of the Court being that the...