Myles Kirby and Others v Anthony Fitzpatrick

CourtCourt of Appeal (Ireland)
Judgment Date30 July 2019
Neutral Citation[2019] IECA 231
Docket NumberRecord No. 2017/457
Date30 July 2019

[2019] IECA 231


Peart J.

Whelan J.

Costello J.

Record No. 2017/457


- AND -

Companies – Liquidation – Former liquidator replaced by High Court – Order to require delivery of relevant content to new liquidator - Breach

Facts: The appellant had formerly been appointed liquidator of Star Elms Frames Ltd. Following the appointment of a fresh liquidator, he was ordered to deliver up all relevant documentation relating to the company. He was held by the High Court in 2017 to be in breach of that order, and now sought to appeal to the Court of Appeal.

Held by the Court, that the appeal would be dismissed, but the cross appeal allowed in respect of the costs order. The respondent had locus standi to seek reliefs from the High Court, and the trial judge was fully entitled to find that the evidence demonstrated a breach of the order. In respect of costs, the Court was minded to reverse the costs reduction at first instance.


By order of the High Court (Faherty J.) dated 10 th May 2017 the appellant, Mr Fitzpatrick, was found beyond a reasonable doubt to have breached an order of the High Court (Humphreys J.) dated 10 th August 2016 by which, inter alia, it was ordered as follows:

‘… pursuant to section 572 (1) (b) of the Companies At 2014 that Mr Anthony Fitzpatrick present all books, records, accounts and property of the company to Myles Kirby Liquidator of the Company as soon as possible and no later than the close of business on Monday the 15 th August 2016.’


Despite that finding of breach, the trial judge stated that ‘at this juncture however it is a historical breach and I regard it as a limited breach since it was remedied on 5 th September, 2016 and in circumstances where, as of 26 th of August, 2016, Mr Fitzpatrick was stating via his solicitor that he was proposing to effect delivery of all relevant materials on 2 nd September, 2016, in Limerick’.


When concluding that in all the circumstances she was not satisfied that the imposition of a fine was warranted, the trial judge noted that the relevant books and records had been handed over by Mr Fitzpatrick, albeit some two weeks beyond the date specified in the order. The trial judge also took into consideration that ‘while the terms of the order were entirely clear as to the date and time specified for the handing over of the relevant books and materials and while the obligation was on Mr Fitzpatrick to comply, the Order was silent as to the location where the handover was to be effected’.


Nevertheless, Mr Fitzpatrick appeals to this court against finding made by the trial judge that he was in breach of the order dated 10 th August 2016, and I will come the grounds upon which he relies for that submission.


The relevant facts by way of background can be summarised adequately by reference to paras 2 and 3 of the judgment of the trial judge [2017] IEHC 376 as follows:

‘2. The relevant background leading to the appointment of Mr Kirby is as follows: on 24 th June, 2016, the Revenue Commissioners presented a petition in the High Court seeking to have the company wound up. The petition was given a return date of 18 th July, 2016. The petition was presented following service by the Revenue Commissioners of a demand dated 10 th March, 2016 for the repayment of the total sum of €582,523.35 which the Revenue Commissioners asserted was due and owing by the company. The members of the company subsequently nominated Mr Anthony J Fitzpatrick, Chartered Accountant, Clonmaney House, Newenham Street, Limerick as liquidator of the company in a creditors” voluntary winding up. Mr Fitzpatrick”s appointment terminated on 10 th August, 2016 following the appointment of Mr Kirby by order of the High Court.

3. In addition to ordering the company to be wound up and appointing Mr Kirby as official liquidator, it was ordered by Humphreys J. on the 10 th August 2016 that ‘pursuant to s. 572(1)(b) of the Companies Act 2014 Mr Anthony Fitzpatrick present all books, records, accounts and property of the company to Miles Kirby, liquidator of the company as soon as possible and no later than close of business on Monday, 15 th August 2016. On 16 th August, 2016, the company and Mr Fitzpatrick lodged a notice of appeal against the High Court order’.


It can be noted also, though not particularly relevant to the issues now arising on this appeal, that having lodged a notice of appeal, Mr Fitzpatrick brought an unsuccessful application to this Court seeking a stay on the said order pending the determination of his appeal.


Not having received the books, records and other documents belonging to the company by close of business on the 15 th August 2016, nor indeed by the 30 th August 2016, the liquidator, Mr Kirby, issued a notice of motion on the 30 th August 2016 seeking a number of reliefs, including orders of attachment and committal against Mr Fitzpatrick for his failure to comply with the order of Humphreys J. dated 10 th August 2016.


That motion was grounded on two affidavits, one by Mr Kirby and another from John Healy, one of Mr Kirby”s staff members. In his affidavit Mr Kirby outlined the general background to his appointment as official liquidator by the Court, and to the history of relevant events, and the fact that he had not yet received the book and records of the company from Mr Fitzpatrick as had been ordered by Humphreys J. by order dated 10 th August 2016. He went on to express his concern that Mr Fitzpatrick was attempting to frustrate and prevent him from carrying out his role as court-appointed liquidator by, inter alia, removing records from the company”s premises after Mr Fitzpatrick had ceased to be the liquidator of the company. At para. 7 of his affidavit, Mr Kirby stated:

‘At a meeting which was arranged with Mr Fitzpatrick for the afternoon of Monday, 15 August 2016 in Limerick, two representatives of Mr Fitzpatrick refused to deliver any books, records, accounts or property to two members of my staff, namely Mr Patrick McCoy and Mr John Healy. Mr Healy swore an affidavit on 18 August 2016, outlining the events which took place. That was in the context of an application brought in the Court of Appeal by, among others, Mr Fitzpatrick, seeking a stay on the winding up of the company. I am aware that Mr Healy is to swear a further affidavit today for the purpose of the present application, outlining the same events.’


Mr Healy”s affidavit described in some detail the events of the 15 th August 2016 as he sees them. Having noted that Mr Fitzpatrick was represented by solicitor and counsel at the hearing on 10 August 2016, he stated the following at para. 10 of his affidavit:

‘Following the conclusion of the hearing, my colleague, Mr Patrick McCoy of Ferris & Associates emailed Mr Fitzpatrick requesting to meet on the following day at the company”s premises. Mr Fitzpatrick replied at 6.20 p.m. that evening, stating ‘the earliest contact to be made with you is Monday next, 15 August 2016 at 5.00 p.m.’, and declining to meet the following day. On Monday, 15 August 2016, it was arranged that a meeting would take place at the company”s premises at 5.00pm. At our request the meeting was then brought forward to 4.00 p.m, because Mr McCoy and I would be meeting Mr Robert McKay, valuer and auctioneer, at the company”s premises at 3.15 p.m. I beg to refer to an exchange of emails in this regard, at Tab A of the Booklet.’


At paras. 18 et seq. Mr Healy described what occurred at 4pm on 15 th August 2016, being the time that had been arranged to meet with Mr Fitzpatrick at the company”s premises as described above. He stated:

‘18. By appointment, we had arranged to meet with Mr Fitzpatrick at the company”s premises on 15 August 2016 at 4.00pm, in order to facilitate the handover of the company”s books, records and property in his possession. Mr McCoy and I had travelled to Limerick on behalf of the Official Liquidator, as a matter of courtesy, in order to facilitate Mr Fitzpatrick.

19. Two individuals arrived at 4.45pm. They introduced themselves as Michael Murphy and John Kirby. Mr McCoy and I spoke with them and Mr McKay was also present as an independent witness.

20. Patrick McCoy asked them if they worked for Mr Fitzpatrick. Michael Murphy stated in response that he was a ‘representative of Mr Fitzpatrick”s as you are the representative of Mr. Kirby’. Patrick asked them what records they had with them to hand over. Michael Murphy stated that they had no records with them. Mr McCoy asked why. Michael Murphy stated that ‘there was a major problem with the Order’ and that ‘the Court does not have jurisdiction to make an order in relation to another liquidator’. Michael Murphy stated that they were acting on counsel”s advice which they were bound to follow and that an appeal would shortly be lodged against the Order. He produced an email which he stated to contain such advice, which he did not hand to us, but on which a line was highlighted stating that the Court did not have jurisdiction to make an order against a liquidator. He stated that this email had just been received ‘half an hour ago’.

21. Mr McCoy pointed out that there was a Court Order compelling Mr Fitzpatrick to hand over the records and property no later than 5.00pm on 15 August 2016. He said that the failure to hand over the records, particularly in relation to the employee claims and debtor collections was preventing the Official Liquidator from doing his job and we needed to know where to begin working from. In response, Michael Murphy stated that all of this work was already done.


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1 cases
  • Brandon Plant Hire Ltd
    • Ireland
    • High Court
    • 6 July 2021
    ...there can be no doubt that the state of affairs as described by Irvine J. is very disturbing. 21 Peart J., in Kirby v. Fitzpatrick [2019] IECA 231, had the following to say about Mr. Fitzpatrick:- “29. I fully appreciate that Mr Fitzpatrick may have been disappointed to say the least that t......

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