Linden Ltd v Glennon

CourtHigh Court
JudgeMr. Justice McGovern
Judgment Date09 February 2007
Neutral Citation[2007] IEHC 59
Docket Number[No. 18860 P/2004]
Date09 February 2007

[2007] IEHC 59


[No. 18860 P/2004]
Linden LTD v Glennon







Appointment - Shareholding - Whether defendant director of plaintiff - Whether defendant shareholder in plaintiff - Defendant granted declarations that plaintiff neither shareholder nor director (2004/18860P - McGovern J - 9/2/20070 [2007] IEHC 59

Linden Ltd v Glennon

Mr. Justice McGovern
delivered on the 9th day of February, 2007

The plaintiff is a private limited liability company which, at the time of commencement of the proceedings, had its registered offices at 20 St. Johns Road, Dublin 4.


The plaintiff company was incorporated on the 24th day of July, 1973, within the State. The plaintiff has a nominal share capital of IR£5,000 divided into 5,000 shares of IR£1 each. Two of the shares were issued and the memorandum of association shows that the shares were issued to Richard Edgar Devlin and Maurice Wilson Cully. The articles of association state that the first directors of the company were Richard Edgar Devlin and Maurice Wilson Cully. In the course of the hearing evidence was given that the effective controller of the company from the date of its incorporation up until July, 1997, was Maurice Cully. It was he who had arranged for the formation of the company and made most of the executive decisions concerning its operation.


Maurice Cully died on 5th November, 1997.


Maurice Culley was married to Belinda Cully, but they had been separated for many years prior to his death. There were two children of the marriage, namely Maurice Cully Junior and Louise Cully, (now Louise Heatherly). In or around 1984 Maurice Cully formed a relationship with Ms. Anne Marie Glennon, the defendant in these proceedings. There are two children of that relationship, namely a son named Zane and a daughter named Lara. Mr. Cully and the defendant became estranged sometime around 1994. In an affidavit sworn in proceedings bearing record no. 1996 No. 4225P between Maurice Cully and Anne Marie Glennon, Mr. Cully states that the relationship terminated in 1994 and Ms. Glennon asserts in an affidavit that it ended in April, 1996. The precise date on which they became estranged is not crucial to my findings in this judgment.


By the time of his death the plaintiff had entered into a further relationship with one Beatrice Frormann and he recorded in his last will and testament that his will was made in contemplation of his marriage to Beatrice Frormann.


In 1990 the Plaintiff company was struck off for failing to make annual returns from 1974 to 1990. Evidence was given by an official from the Companies Registration Office who traced the history of the appointment and resignation of directors in the company and other relevant changes from time to time. Most of the documents on the Companies Registration Office file were reconstructed. Mr. Dermot Coyne gave evidence that he took instructions from the late Mr. Maurice Cully with a view to recreating, as accurately as possible, the records of the company. Louise Heatherly (nee Cully) assisted in that task and signed some annual returns with her father. There are a small number of documents which can be traced back to the period 1974 to 1990 and I will refer to some of these later in the judgment. But most of the returns in that period are based on a reconstruction. In the course of the hearing I heard evidence from a number of witnesses in support of the documentation which has been recreated.


In High Court proceedings bearing record number 1991/6582P a petition was brought to have the company restored to the register of companies. By order made on 13th May, 1991, the company was restored to the register.


In or about the month of November, 2001, the auditors of the company received a letter from the defendant's solicitors claiming that the defendant had been appointed as a director of the company some time earlier. The letter asserted,inter alia, that she continued to be a director of the company. The company contends that she was never made a director nor did she ever act as director nor was she treated as a director. In view of the dispute on this issue the company commenced these proceedings. In these proceedings the company seeks a declaration that the sole directors of the plaintiff company are;

(a) Louise Heatherly, neé Cully, and Dermot P. Coyne;

(b) a declaration that the defendant is not a director of the plaintiff company;


(c) an injunction restraining the defendant, her servants or agents, or any person acting in consort with her from purporting to act or hold herself out in any manner whatsoever as a director of the plaintiff company; such further declaratory orders or other relief as may be just or necessary.


In the statement of claim it is pleaded that the sole shareholders in the plaintiff company are the late Maurice Cully and Louise Heatherly, neé Cully. It is also pleaded that after Maurice Cully died his shareholding in the plaintiff company was heldpro tempore by Dermot P. Coyne, solicitor, in his capacity as executor of the estate of the said Maurice Culley, deceased.


The defendant delivered a Defence and Counterclaim. In the defence she denies that Louise Heatherly is a shareholder in the company and that the share of the late Maurice Cully is held "pro tempore" by Dermot Coyne whether in his capacity as executor of the estate of the said Maurice Cully, deceased or otherwise. She also denies that Mr. Coyne is the lawfully appointed executor of the said estate. The latter issue was subsequently litigated in a probate action and by order of the High Court the will of the late Maurice Cully was admitted to probate and Dermot P. Coyne is the executor of the will so admitted. The defendant also denies that the said Louise Heatherly, neé Cully and the said Dermot P. Coyne are directors of the company. The defendant pleads that she invested IR£50, 000 in the company and was duly appointed a director of the company on 9th May, 1988 at a salary of £27,000.00 per annum. She contends that at all material times the late Maurice Cully was the full beneficial owner of the issued shares and that he held one share in the plaintiff company in his own right and the second share was held in trust for him by a succession of trustees none of whom had any capital input nor any equitable interest in the said shares. She claims that she agreed to invest £50, 000.00 in the plaintiff company in consideration of her appointment as a director of the plaintiff and a 50% beneficial share in the shareholding of the plaintiff. In the course of the hearing the Defendant stated that she was not claiming to be the owner of a share in the Company. She counterclaims that she is the only lawfully appointed director of the plaintiff company having been duly appointed in May 1988 and seeks a declaration that she is the only lawfully appointed director of the plaintiff; a declaration that neither Dermot P. Coyne or Louise Heatherly were lawfully appointed as directors; she also claims other relief including damages for breach of contract and such accounts or enquiries as may be necessary.


At the commencement of the hearing counsel for the company informed the court that in advance of the hearing it had served on the plaintiff an amended statement of claim to cover the defendant's plea that she is entitled to 50% of the beneficial ownership of the shareholding of the plaintiff company. The application to file an amended Statement of Claim was not proceeded with at the commencement of the hearing but in the course of the trial an extensive amount of evidence was given as to the shareholding of the plaintiff company and it is clearly desirable in the interest of deciding the issues in this case and for the saving of costs and expense that this matter should be dealt with as part of these proceedings, having been raised in the defence and counterclaim of the defendant. As this matter had not been resolved on the conclusion of the hearing the matter was put in for mention on the week following the conclusion of the evidence and the parties agreed that the issue of the shareholding should be dealt with. The defendant accepted that she had prior notice of the amended statement of claim and is not prejudiced by it. Accordingly I directed that the amended statement of claim be filed in the Central Office and I will deal with the issue of the shareholding in the plaintiff company in the course of this judgment.


The reconstructed Companies Office file shows the following appointments and resignations of directorships:-


First directors on incorporation - Richard Edgar Devlin and Maurice Wilson Cully.


18th June, 1984 Richard Devlin resigned and Desmond Stephen Waddick was appointed.


16th February, 1990 Louise Dorothy Cully appointed and Derek Desmond Waddick resigned.


30th July, 1996 Beatrice Frormann appointed and Louise Cully resigned.


28th July, 1997 Dermot Coyne appointed and Maurice Cully resigned.


31st July, 1998 Beatrice Frormann resigned and John Carlin appointed.

31st July, 1998 Louise Cully appointed

8th March, 2000 John P. Carlin resigned.


10th March, 2000 Form B10 reciting John Carlin resigned as director and secretary on


10th March, 2000 Louise Cully appointed secretary.


9th June, 2000 Dermot Coyne appointed.


There are a number of inconsistencies in the later documents. For example a B10 form shows that Dermot Coyne was appointed a director from the 28th July, 1997. A later B10 form shows that he consented to act as director and he signed a consent to act as a director on the 9th June, 2000. A B10 form dated 10th March, 2000 shows John Carlin...

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