Re Amantiss Enterprises Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Laffoy
• Judgment Date: 22 January 2013
• Neutral Citation: [2013] IEHC 21
• Court: High Court
• Date: 22 January 2013

Amantiss Enterprises Limited (In Voluntary Liquidation) & Wilbury Limited (In Voluntary Liquidation), In Re

IN THE MATTER OF: AMANTISS ENTERPRISES LIMITED (IN VOLUNTARY LIQUIDATION)

AND

WILBURY LIMITED (IN VOLUNTARY LIQUIDATION)

AND IN THE MATTER OF: THE COMPANIES ACTS 1963 - 2012

[2013] IEHC 21

[No. 696 COS/2012]

THE HIGH COURT

Voluntary winding up – Strike out appeal of companies - Creditor”s meetings – Conduct at meetings – Voting at creditor”s meetings – Conflict of interest – Appeal – Strike out - Companies

Facts: Amantiss Enterprises and Wilbury Ltd were being wound up in a creditor”s voluntary liquidation. A creditor of both companies sought relief concerning the conduct of the meetings summoned by the liquidator which had taken place. He sought orders under the Companies Act 1963 regarding the core issue of the appeal; whether the appeal brought on behalf of the two companies should be struck out.

The applicant firstly contended pursuant to s. 309 the meetings should be held in order to ascertain the creditor”s wishes. If necessary an order then pursuant to s.280 should be made determining questions arising as to conduct, and if required under s.277 the liquidator should be removed on cause shown and another should be appointed. Finally if necessary pursuant to s. 280 and inherent jurisdiction of the court an order should be made directing the liquidator to prosecute the appeal.

Laffoy J held that compelling the liquidator to prosecute the appeal under s. 280 could not be entertained as there were motions by respondents pending in the Supreme Court to strike out the appeal. According to the circumstances of the case, questions arising as to conduct under s.280 and s.277 were considered not to be applicable.

It was held that the court possessed discretion under s. 309(1) to have regard to the wishes of the creditors of a company. Under s. 309(2) however the quantum of creditor”s claims would have to be ascertained. In the case there was a conflict of interest, as some of the creditors also were respondents, and this was the primary reason to exclude voting from meetings.

The court held s. 309 was flexible in order to form a view on the wishes of the creditors, the court therefore directed that votes should be taken at a designated meeting and gave directions in relation to the conduct of the meeting.

The meetings were summoned prior to the hearing of the application, the judgement therefore made no determination on the entitlement of a creditor to bring an application requiring the Court to direct a meeting in accordance with s. 309.

COMPANIES ACT 1963 S309

COMPANIES ACT 1963 S280

COMPANIES ACT 1963 S277

COMHLUCHT PAIPEAR RIOMHAIEACHTA TEO v UDARAS NA GAELTACHTA 1990 1 IR 320

COMPANIES ACT 1963 S309(1)

COMPANIES ACT 1963 S309(2)

MACCANN & COURTNEY COMPANIES ACTS 1963-2012

GENPORT LTD, IN RE UNREP MCCRACKEN 21.11.1996 1997/3/1050

RSC O.74 PART X

RSC O.74 r54(1)

RSC O.74 r55(1)

RSC O.74 r68

1 Judgment of Ms. Justice Laffoy delivered on 22nd day of January, 2013.

Background

2 1. The companies named in the title hereof, Amantiss Enterprises Limited, (Amantiss) and Wilbury Limited (Wilbury) are each being wound up in a creditors' voluntary liquidation which commenced on 1 ^st April, 1994. Mr. Des Donegan (the Liquidator) is the Liquidator in both liquidations. In 1996, after the liquidations had commenced, proceedings were initiated in the High Court between Framus Limited, Amantiss (in voluntary liquidation) and Wilbury (in voluntary liquidation), as plaintiffs, and CRH plc, Irish Cement Limited, Roadstone Provences Limited, Roadstone Dublin Limited, Tradburn Limited, Readymix plc, Kilsaran Concrete Products Limited and CPI Limited, as defendants (Record No. 1996/ 10658P). By order of the Court made on 11 ^th October, 2011 those proceedings (the Competition Proceedings) were entered in the Competition List. Around the same, time motions were brought on behalf of all of the defendants in the Competition Proceedings to have those proceedings dismissed on the grounds of inordinate and inexcusable delay. The motions were heard by Cooke J., who delivered judgment on 19 ^th July, 2012, in which he held that the defendants' motions should be allowed and that the Competition Proceedings should be dismissed. By order of the Court (Cooke J.) made on 26 ^th July, 2012 the Competition Proceedings were dismissed and it was ordered that the defendants recover their costs of the proceedings, including reserved costs and costs of discovery, if any, against the plaintiffs.

3 2. In September 2012, following perfection of the order made on 26 ^th July, 2012, the Solicitors who had acted for all three plaintiffs in the Competition Proceedings, Philip Lee, filed in the office of the Supreme Court and served on all of the defendants a notice of appeal against the order of 26 ^th July, 2012 on behalf of the three plaintiffs, which will be collectively referred to as "the appellants" below. The appeal is pending in the Supreme Court.

4 3. The order of 26 ^th July, 2012 provided that the order (including the costs element thereof) should be stayed until after 10 ^th October, 2012. There is pending in the Supreme Court an application on behalf of the appellants to continue this stay until the appeal is determined. As I understand the position, the defendants in the Competition Proceedings, being the respondents on the appeal, have agreed to the stay remaining in place until certain applications which are now pending before the Supreme Court in relation to the appeal are determined.

5 4. While there is no affidavit from the Liquidator before this Court on the application to which this judgment relates, the position of the Liquidator set out in the outline legal submissions on his behalf put before the Court is that, insofar as the appeal has been initiated and prosecuted on behalf of Amantiss and Wilbury, this has been done without the authority of the Liquidator, although the Liquidator recognises that this is a contentious issue. In any event, the first five defendants to the Competition Proceedings (the CRH Respondents) have brought an application to the Supreme Court to strike out the appeal on the basis that it was "purportedly" brought on behalf of Amantiss and Wilbury. Similar applications have been brought on behalf of two of the remaining three defendants/respondents and it has been made clear that the third remaining defendant/respondent is supporting all of those applications. The applications to strike out the appeal are returnable before the Supreme Court on 25 ^th January, 2013.

6 5. It is because the Liquidator's position is that he did not authorise the bringing of the appeal on behalf of Amantiss and Wilbury and the position he has adopted that the appeal is not in the best interests of the creditors of those companies that the application to which this judgment relates has been brought in this Court.

The application

7 6. The application was initiated by an originating notice of motion dated 18 ^th December, 2012, which, with the leave of the Court, was returnable on 20 ^th December, 2012. The applicant on the application is Seamus Maye (Mr. Maye), on the basis that he is a creditor of both Amantiss and Wilbury. He is also a director of Framus Limited. The reliefs sought on the originating notice of motion, which is directed to the Liquidator, are as follows:

8 (a) orders pursuant to s. 309 of the Companies Act 1963 (the Act of 1963) directing that -

9 (i) a meeting of the creditors of Amantiss for the purposes of ascertaining the wishes of the creditors as to the conduct by or on behalf of Amantiss of the appeal to the Supreme Court and associated matters, and

10 (ii) a meeting of the creditors of Wilbury for the purposes of ascertaining the wishes of the creditors as to the conduct by or on behalf of Wilbury of the appeal and associated matters,

11 be called, held and conducted in such manner as the Court shall direct and that a person to be specified be appointed to act as chairman of each meeting and to report the results thereof to the Court;

12 (b) if necessary, an order pursuant to s. 280 of the Act of 1963 determining questions arising as to the conduct of the appeal by or on behalf of Amantiss and Wilbury;

13 (c) if necessary, and in the alternative, an order pursuant to s. 277 of the Act of 1963 removing the Liquidator as liquidator of Amantiss and of Wilbury on cause shown and appointing another person as liquidator to each of those companies; and

14 (d) if necessary, an order pursuant to s. 280 of the Act of 1963 and/or the inherent jurisdiction of the Court directing the Liquidator, as liquidator of Amantiss and of Wilbury, to prosecute the appeal on behalf of Amantiss and Wilbury.

15 7. When the application came before the Court on 20 ^th December, 2012, counsel for the Liquidator indicated that, while the Liquidator had no difficulty convening meetings of the creditors of Amantiss and Wilbury, he was concerned as to the status of the defendants to the Competition Proceedings, being the respondents on the appeal, having regard to the existence of the provisions in the order of 26 ^th June, 2012 awarding them costs against, inter alia, Amantiss and Wilbury. The Court directed that an issue be tried as to whether the defendants in the Competition Proceedings stand as creditors in the liquidation of Amantiss and in the liquidation of Wilbury enabling them to attend and vote at any creditors' meeting. 18 ^th January, 2013 was the date fixed for the hearing of that issue.

Events prior to the hearing of the issue

16 8. On 16 ^th January, 2013 the Liquidator gave notice of the summoning of a meeting of the creditors of Amantiss and of the summoning of a meeting of the creditors of Wilbury, both meetings to be...