Proctor & Gamble (Manufacturing) Ireland Ltd v Minister for Public Expenditure and Reform
| Jurisdiction | Ireland |
| Judge | Mr. Justice David Barniville |
| Judgment Date | 20 May 2021 |
| Neutral Citation | [2021] IEHC 371 |
| Docket Number | [2021 No. 50 SP.] |
| Year | 2021 |
| Court | High Court |
[2021] IEHC 371
[2021 No. 50 SP.]
[2021 No. 33 COM]
THE HIGH COURT
COMMERCIAL
EX TEMPORE JUDGMENT of Mr. Justice David Barniville delivered on the 20 th day of May, 2021
. This is an application by Proctor & Gamble (Manufacturing) Ireland Limited for an order under section 26 of the Trustee Act, 1893 (the “1893 Act”) vesting in that company, which is the Applicant in these proceedings, the leasehold interest in part of its manufacturing premises at Newbridge, Co. Kildare.
. The basis for the application is that the Applicant company claims to be beneficially entitled to the leasehold interest of the relevant property and the trustee of that leasehold interest is said to be a company which has been dissolved. It is contended, therefore, that on the case law, and under section 26 of the 1893 Act, the trustee is a trustee “ which cannot be found” and that the Court has jurisdiction under section 26 of the 1893 Act to vest the leasehold interest in question in the Applicant company.
. I have been provided with affidavit evidence on behalf of the Applicant company in the form of an affidavit sworn by John Houlihan on 31st March, 2021, and an affidavit sworn by Alan Coyne of Arthur Cox on 14th May, 2021. The facts are not in dispute and, as I explain in a moment, there is no opposition to this application. The Chief State Solicitor's Office on behalf of the Commissioner of Public Works in Ireland does not object to the application. I will come back to the procedural history of the application shortly.
. It seems to me on the basis of the uncontested evidence before the Court, that the following are the relevant facts and I find them as such:
. The Applicant company was incorporated under the name Braun Ireland Limited on 18th December 1973. It changed its name to Braun Oral-B Ireland Limited on 27th February 2002. It changed its name further to its current name on 1st July 2012. It is, therefore, now known as Proctor & Gamble (Manufacturing) Ireland Limited. The Applicant operates a manufacturing facility from premises at Newbridge Business Park in Newbridge, Co. Kildare.
. Title to the premises is held under five leases which are described in the affidavit of Mr. Houlihan. Two of the leases postdate the events which have given rise to this application. It is only one of the leases, referred to in Mr. Houlihan's affidavit as the Lot 3 lease, which is relevant. That lease, the Lot 3 lease, was granted by the IDA on the 31st December 1997 to a company called Oral-B Laboratories Islands Limited, referred to as “Oral-B”, for a term of 999 years. The lands the subject of that lease are now comprised in Folio 4954L of the register of leaseholders of Co. Kildare.
. As I have indicated, the lessee under the Lot 3 lease was Oral-B, a company registered in the Cayman Islands, which carried on business in this jurisdiction through its registered branch in Ireland.
. On 18th December 2001, Oral-B, as the transferor or seller, entered into a Business Transfer Agreement (the “BTA”) with the Applicant company as the purchaser or transferee. It is necessary to refer now to some provisions of the BTA in order to understand what has happened here.
. In Recital (B) to the BTA, it is stated that the transferor and the transferee were entering into the agreement to provide for the transfer to the transferee of the “ business of the Irish branch”, which is the Irish branch of Oral-B, more particularly described in the First Schedule to the BTA. That business is defined as the “ Business” and it is described in further detail in the First Schedule to the BTA, as follows:
“The entire business of the Irish branch, which includes design, production, manufacture, sale and distribution of oral care products carried on at Newbridge Business Park, Green Road, Newbridge, Co. Kildare, Ireland, together with all related assets liabilities and employees.”
. Clause 2.1 of the BTA is the provision which provides for the transfer of the business. It says that in consideration of the payment of the consideration, which is the sum of IR£226 million, and on the assumption of various liabilities and the performance of various obligations by the transferee, which is the Applicant company, the transferor, namely Oral-B, as beneficial owner was agreeing to transfer, and the transferee was agreeing to acquire as a going concern on the completion date, which was the 19th December 2001, and with effect from the effective date, which was midnight on the 31st December 2001, “ all the property undertaking and assets of the business.”
. Clause 2.1 further provides that the transferor, namely Oral-B, transfers to the transferee, namely the Applicant company, as of midnight on the 31st December 2001, “all of the transferor's right title and interest in the assets”, save for certain assets that are not relevant for present purposes.
. The term “ assets” is defined in Clause 1.1.1 of the BTA as meaning:
“All of the assets of the transferor, including all goodwill, licences, industrial property rights, Properties, fixtures and fittings, plant and equipment, stocks, raw materials, furniture, tools, vehicles, book debts and creditors, and all other assets rights and properties of the transferor whatsoever used in connection with the business of the transferor and existing as at the effective date.”
As I have already noted, the “ effective date” is midnight on the 31st December 2001.
. The word “ Properties” first mentioned in that definition is itself defined in the definition section in Clause 1.1.1 as meaning:
“The properties owned by the transferor as listed in the second schedule.”
. The second schedule refers to the properties by reference to a Deed of Transfer relating to the lands and buildings used in the business.
. Mr. Houlihan has said at paragraph 15 of his affidavit that that Deed of Transfer cannot be located. He explains at paragraph 15 of his affidavit that attempts have been made to locate the Deed of Transfer; a search has been carried out at the premises but it has not been possible to locate a copy of the deed. Mr. Houlihan further says that the files were transferred to the Applicant company's solicitors by its previous Irish solicitors and that those files did not include a copy of the Deed of Transfer. Further enquiries have not turned up a copy.
. I do not think there is any real problem with the absence of the Deed of Transfer because the definition of “ assets” in Clause 1.1.1 is, in any event, extremely wide and refers explicitly at the end of the definition to “all other assets, rights and properties” of Oral-B whatsoever, which were used in connection with its business. That would clearly include any interest that Oral-B had at that time in the property in Newbridge and would include its interest in the Lot 3 lease.
. They are the relevant provisions of the BTA for the purpose of this application.
. I am satisfied on the evidence, which I have just summarised, that at the time of the BTA the Lot 3 lease was an asset of Oral-B. I am also satisfied that at the time of that agreement, the lands, which were the subject of the Lot 3 lease, were being used by Oral-B as part of its Irish business.
. I am further satisfied on the evidence that the Applicant paid Oral-B for ( inter alia) its interest in the Lot 3 lease. In that regard my attention was drawn to the relevant directors' report and financial statements showing the payment by the Applicant company to Oral-B of the consideration of just shy of €254 million. Consequently, under the BTA the obligation of Oral-B to transfer its interest in the Lot 3 lease arose with effect from the completion date under the BTA, which was the 19th December 2001, and was to take effect on the effective date, which was midnight on the 31st December 2001.
. I accept on the evidence that, through inadvertence, Oral-B failed to effect the transfer of its interest in the Lot 3 lease to the Applicant company, although it did effect the transfer of its interests in the two other leases which were in existence at the time. They have been referred to as the Lot 1 lease and the Lot 2 lease. The interests of Oral-B under those leases were transferred to the Applicant company in accordance with its obligations under the BTA. That was not done with respect to the Lot 3 lease and it remains registered in the name of Oral-B.
. The following then occurred: On the 12th May 2010, Oral-B, which as noted earlier was a company incorporated under the law of the Cayman Islands, was voluntarily...
To continue reading
Request your trial