De Lacy v Coyle

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Allen
Judgment Date18 Feb 2020
Neutral Citation[2020] IEHC 57
Docket Number[2017 No. 225 COS]

[2020] IEHC 57

THE HIGH COURT

Allen J.

[2017 No. 225 COS]

IN THE MATTER OF DECOBAKE LIMITED (IN LIQUIDATION)

AND IN THE MATTER OF THE COMPANIES ACT, 2014

BETWEEN
DECLAN DE LACY
APPLICANT
AND
PAUL COYLE, MARGARET COYLE, ANDREW MOFFAT,
MALCOLM O'MAHONY, CATHERINE KENNEDY, DEIRDRE MURPHY

AND

DAVID KIERNAN
RESPONDENTS
AND
BETWEEN
PAUL COYLE
APPLICANT
AND
DECLAN DE LACY, MARGARET COYLE, ANDREW MOFFAT,
MALCOLM O'MAHONY, CATHERINE KENNEDY, DEIRDRE MURPHY

AND

DAVID KIERNAN
RESPONDENTS

Liquidation – Committee of inspection – Extension of time – Appellant seeking directions as to the membership and composition of the committee of inspection – Whether an extension of time in which to comply with the requirements of s. 681 of the Companies Act 2014 ought to be granted

Facts: Mr McHugh, a Dublin City Council rates collector, on 29th June, 2017, presented a petition to the High Court for the winding up of Decobake Ltd. The High Court (Gilligan J) made an order appointing Mr De Lacy as provisional liquidator. The petition was heard by the High Court (Keane J) on 24th July, 2017 when an order was made that the company be wound up and Mr De Lacy was appointed official liquidator. Mr Coyle and Mrs Coyle, the directors of the company, appealed to the Court of Appeal against the making of the winding up order. On 25th June, 2019, Costello J dismissed the appeal. Four motions were issued in the High Court in the liquidation. By the first, issued on 29th August, 2018, the liquidator sought directions as to the membership and composition of the committee of inspection. By the second, issued on 5th October, 2018, Mr Coyle sought an order for the removal of the liquidator for cause shown, alternatively an order annulling the liquidation, alternatively an order to convene a creditors’ meeting and/or an extraordinary general meeting of the company, and a variety of other orders against the liquidator, and directed to the composition of the committee of inspection. By the third, issued on 8th May, 2019, Mr Coyle sought an order setting aside the winding up order and a declaration that Mr McHugh did not have power or standing to present a winding up petition. By the fourth, issued on 4th June, 2019, Mr Coyle sought a variety of orders, primarily an order directing compliance by the liquidator with his obligation under s. 681 of the Companies Act 2014 to file a statement of proceedings and position of the winding up. Following the judgment of the Court of Appeal of 25th June, 2019, a fifth motion was issued in the liquidation on 16th September, 2019 by which the liquidator sought an extension of time in which to comply with the requirements of s. 681 of the 2014 Act. On 23rd August, 2019 Mr Coyle issued a motion in plenary proceedings 2017 No. 7252 P, in which Mr De Lacy was plaintiff and Mr Coyle, his wife and his daughters were defendants, directing the release to the judge dealing with the applications in the liquidation of the documents which had been discovered by Mr De Lacy in the plenary proceedings.

Held by Allen J that, on Mr De Lacy’s motion issued on 29th August, 2018, there would be: (a) an order pursuant to s. 631(2) of the 2014 Act determining that the members of the committee of inspection were Mr O’Mahony, Ms Kennedy, Mr Kiernan, Ms Murphy, Mr Coyle, Ms Coyle and Mr Moffat; and (b) an order refusing the application pursuant to s. 668(7) dispensing with the need to fill the vacancy on the committee of inspection which arose on the resignation of Ms Woods on 16th August, 2018. Allen J held that Mr. Coyle’s motion issued on 5th October, 2018 would be refused, that Mr Coyle’s motion issued on 4th June, 2019 would be refused and that Mr De Lacy’s motion issued on 16th September, 2019 would be refused.

Allen J held that there would be an order for the payment by Mr Coyle of the costs of Mr De Lacy’s motion issued on 29th August, 2018 and of Mr Coyle’s motion issued on 5th October, 2018, which, in any event, would be ordered to be costs in the liquidation. Allen J held that there would be no order as to the costs either of Mr Coyle’s motion issued on 4th June, 2019 or of Mr. De Lacy’s motion issued on 16th September, 2019. Allen J held that he would hear counsel as to what, if any, order should be made as to Ms Murphy’s costs.

Directions in liquidation.

JUDGMENT of Mr. Justice Allen delivered on the 18th day of February, 2020
Background
1

On 29th June, 2017 Mr. Denis McHugh, a Dublin City Council rates collector, presented a petition to the High Court for the winding up of Decobake Limited. On the same day, the High Court (Gilligan J.) made an order appointing Mr. Declan De Lacy as provisional liquidator.

2

The petition was heard by the High Court (Keane J.) on 24th July, 2017 when an order was made that the company be wound up and Mr. De Lacy was appointed official liquidator.

3

Mr. Paul Coyle and Mrs. Margaret Coyle, the directors of the company, appealed to the Court of Appeal against the making of the winding up order. For the reasons given in a written judgment of Costello J., delivered on 25th June, 2019, with which Peart and McGovern JJ. agreed, [2019] IECA 169 Mr. and Mrs. Coyle's appeal was dismissed.

4

In the meantime, four motions had been issued in the High Court in the liquidation.

5

By the first, issued on 29th August, 2018 and originally returnable for 8th October, 2018, the liquidator sought directions as to the membership and composition of the committee of inspection.

6

By the second, issued on 5th October, 2018 and originally returnable for 12th November, 2018, Mr. Coyle sought an order for the removal of the liquidator for cause shown, alternatively an order annulling the liquidation, alternatively an order to convene a creditors' meeting and/or an extraordinary general meeting of the company, and a variety of other orders against the liquidator, and directed to the composition of the committee of inspection.

7

By the third, issued on 8th May, 2019 and originally returnable for 15th July, 2019, Mr. Coyle sought an order setting aside the winding up order and a declaration that Mr. McHugh did not have power or standing to present a winding up petition.

8

By the fourth, issued on 4th June, 2019 and originally returnable for 8th July, 2019, Mr. Coyle sought a variety of orders, primarily an order directing compliance by the liquidator with his obligation under s. 681 of the Companies Act, 2014 to file a statement of proceedings and position of the winding up.

9

Following the judgment of the Court of Appeal of 25th June, 2019, a fifth motion was issued in the liquidation on 16th September, 2019 and originally returnable for 15th October, 2019 by which the liquidator sought an extension of time in which to comply with the requirements of s. 681 of the Act of 2014.

10

On 23rd August, 2019 Mr. Coyle issued a motion in plenary proceedings 2017 No. 7252 P., in which Mr. De Lacy is plaintiff and Mr. Coyle and his wife Margaret, and his daughters Emily and Amy are defendants, directing the release to the judge dealing with the applications in the liquidation of the documents which had been discovered by Mr. De Lacy in the plenary proceedings.

11

I heard all six motions over two weeks commencing on 15th October, 2019. The motion papers alone ran to five folders. The motions were unfocussed and there was a good deal of overlap between them. The affidavits were prolix, argumentative and repetitious.

12

The liquidator's first motion - in relation to the composition of the committee of inspection - was made on notice to all of the members of the committee of inspection, including a Mr. Andrew Moffat who had been appointed as a members' nominee. Mr. Moffat was also given notice of Mr. Coyle's motion issued of 5th October, 2018. Mr. Moffat filed a number of prolix and argumentative affidavits and written submissions in support of Mr. Coyle's motion and in opposition to the liquidator's motion, and he appeared in person at the hearing of those motions and was heard.

Recusal application
13

At the sitting of the court on 15th October, 2019 I heard, and in an ex tempore judgment, ruled upon an application by Mr. Coyle that I should recuse myself. Mr. Coyle made a general submission that he did not feel that lay litigants get a fair crack of the whip. Mr. Coyle's objection to my dealing with the motions was that I had been “involved in other proceedings” and that I had “heard applications and made orders in court No. 3”.

14

The reference to other proceedings was to a wholly unrelated landlord and tenant dispute between Mr. and Mrs. Coyle and their landlord which I had previously heard and decided. Mr. Coyle may not have been happy with the result, but he did not suggest that he had not been fairly heard. The reference to applications in court No. 3 was to case management directions which I had given in respect of the first two motions which appeared in a directions list on 20th June, 2019. At that time those motions had been listed for hearing on the 2nd July, 2019 and the object of the listing on 20th June, 2019 was to confirm to the court that they would be ready. After the hearing date was fixed, Mr. Coyle had issued the third and fourth motions. On that occasion, counsel for the official liquidator asked that the third and fourth motions, which were returnable for the 8th and 15th July, 2019, should be brought forward to 2nd July, 2019 and heard together with the first two. Mr. Coyle objected, and I ruled in his favour. Mr. Coyle asked that the hearing of the first and second motions be deferred until the third and fourth motions were ready, and I ruled against him. In the event, there was no judge available on 2nd July, 2019 and the third and fourth motions caught up before a new hearing date was fixed.

15

The gravamen of Mr. Coyle's application that I should recuse myself was that there had been a “confrontation” in court on 20th June, 2019....

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