Print and Display Ltd v Dowdall
| Jurisdiction | Ireland |
| Judge | Mr. Justice Tony O’Connor |
| Judgment Date | 26 July 2019 |
| Neutral Citation | [2019] IEHC 637 |
| Docket Number | [2018 No. 279 COS] |
| Court | High Court |
| Date | 26 July 2019 |
[2019] IEHC 637
THE HIGH COURT
Tony O’Connor
[2018 No. 279 COS]
IN THE MATTER OF DOMINAR GROUP LIMITED (IN VOLUNTARY LIQUIDATION)
AND IN THE MATTER OF SECTION 638 OF THE COMPANIES ACT 2014
Cross-examination – Liquidator – Removal – Applicant seeking leave to cross-examine – Whether cross-examination was required
Facts: The applicant, Print And Display Ltd, brought a motion to remove the respondent, Mr Dowdall (the liquidator), as liquidator of Dominar Group Ltd (the company), pursuant to s. 638 of the Companies Act 2014. The applicant applied to the High Court for leave to cross-examine the liquidator. The issues in respect of which the applicant wished to cross-examine the liquidator were distilled down into five categories: (i) whether the company was and is solvent; (ii) whether there was a failure to maximise full value from the sale of shares in a Polish subsidiary, Print & Display (Polska) SP. Zoo (P&D Polska); (iii) whether the liquidator failed to supply information to the applicant as may be established as having been required by law; (iv) whether the liquidator failed to preserve and safeguard the assets of the company; and (v) the issue of financing the removal of waste material from the Osmanska 7 site, the sole remaining asset of the company.
Held by O’Connor J that: (i) the applicant had not satisfied the Court that cross-examination on this issue was required; (ii) the applicant had not satisfied the Court that cross-examination of the liquidator on his affidavits was required or would assist the judge hearing the application to remove on this aspect; (iii) the applicant had not established to the Court’s satisfaction that the judge hearing the removal application would require a cross-examination of the liquidator about the dates and contents of communications throughout the years of the liquidation; (iv) the Court considered it best to allow the judge hearing the removal application to determine the extent of questions which could be posed by counsel for the applicant at the hearing of the removal of liquidator, therefore, O’Connor J would give leave to cross-examine the liquidator on this aspect; (v) it was the Court’s view that it was best to leave to the judge hearing the application to remove to decide on whether cross-examination and/or further questions of the liquidator would assist his or her determination of the application.
O’Connor J held that the Court would grant leave to cross examine the liquidator but confined to those two particular issues and as may be determined by the judge hearing the removal application. O’Connor J held that the Court would also grant leave for counsel representing the liquidator to cross-examine Mr Conway, director of the applicant, on such facts as the judge hearing the application to remove may approve.
Leave granted.
The background to this application for leave to cross-examine is the applicant's motion to remove the respondent as liquidator ( “the liquidator”) of Dominar Group Ltd ( “the company”), pursuant to s. 638 of the Companies Act 2014 ( “2014 Act”).
The grounding affidavit of Mr. Jim Conway, director of the applicant, for that application to remove was sworn on 16 th July, 2018, and the grounding application for this motion seeking leave to cross-examine was sworn by the solicitor for the applicant on 28 th January, 2019, with the same solicitor swearing a supplemental affidavit on 18 th February, 2019.
Mr. Conway offers himself for cross-examination on his affidavits if leave is given to cross-examine the liquidator in this application. Counsel for the parties, at the direction of this Court, prepared outline legal submissions for the substantive hearing so that the Court could acquaint itself with the issues of fact and law that will arise on a full hearing of the application to remove the liquidator.
Attached to the typed version of this judgment is the uncontroversial chronology of key events which were appended to the submissions for the liquidator.
The Court in passing mentions that the liquidator was appointed voluntarily by the members, being the applicant (in which Mr. Conway is very involved) and the notice party, on 9 th April, 2008. A declaration of solvency was sworn on that date also.
The applicant and the respondent have confirmed that they are both keen to have the underlying application to remove the liquidator determined soon. The Court heard final submissions yesterday and, in its own way, contributes to advancing matters by delivering this judgment today.
The chronology and the legal submissions of the respondent will facilitate the judge trying the issues. The trial judge will be further guided by the principles set out in the Court of Appeal judgment of Revenue Commissioners v. Fitzpatrick [2016] IECA 228 (unreported, Court of Appeal, 26 th July, 2016), where the High Court's decision to remove the liquidator ( Revenue Commissioners v. Fitzpatrick [2015] IEHC 477, (unreported, High Court, 21 st July, 2015)) was affirmed by the Court of Appeal.
This Court is in the unenviable position of having to foresee how relevant facts and arguments will be established and advanced at the hearing of the motion to remove the liquidator.
Order 74, rule 35(1) of the Rules of the Superior Courts ( “RSC”) provides:-
“Without limiting the power of the Court to make such an order of its own motion in accordance with section 638(1) of the Act, an application to the Court by a member, creditor, liquidator or the Director under that sub-section to appoint a liquidator if from any cause whatever there is no liquidator acting, or on cause shown, to remove a liquidator and appoint another liquidator, shall be by motion on notice to the liquidator (if any).”
After painstaking efforts by counsel and the Court, the issues in respect of which the applicant wishes to cross-examine the liquidator can be distilled down into five categories:-
(i) whether the company was and is solvent;
(ii) whether there was a failure to maximise full value from the sale of shares in a Polish subsidiary, Print & Display (Polska) SP. Zoo ( “P&D Polska”);
(iii) whether the liquidator failed to supply information to the applicant as may be established as having been...
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Print and Display Ltd v Dowdall
...It would seem therefore that s. 169 (1) also applies to interlocutory applications. 16 In the ex tempore judgment of O'Connor J. at [2019] IEHC 637, it is clear that, having had the benefit of written submissions which he requested, the court considered five categories of issues in respect ......