Re Hibernian Transport Companies Ltd

• Jurisdiction: Ireland
• Judgment Date: 01 January 1972
• Docket Number: [1970. No. 3853 P.]
• Court: Supreme Court
• Date: 1972

Supreme Court

[1970. No. 3853 P.]

In re Hibernian Transport Cos. Ltd.

In the Matter of HIBERNIAN TRANSPORT COMPANIES LIMITED (in Liquidation)

Company - Winding up - Sale of property - No bids received at public auction - Private offer approved by High Court - Subsequent increased offer rejected by court - Liquidator invoking jurisdiction of High Court - Rules of the Superior Courts, 1962 (S.I. No. 72), Or. 74, r. 125 - Companies Act, 1963 (No. 33), s. 231.

Appeal from the High Court.

By a Lease dated the 22nd April, 1969, Associated Properties Ltd. demised the premises known as Hibernian House (formerly Adair House), 13 to 16 Fleet Street in the City of Dublin to Irish Shell and B.P. Ltd. for the term of 21 years from the 1st April, 1969, subject to the payment of the yearly rent of £21,000 by quarterly instalments of £5,250 on each first day of January, April, July and October during the term of years, and subject to the covenants on the part of the lessee and the conditions contained in the Lease. The Lease contained a forfeiture clause which enabled the lessor to re-enter into possession of the demised premises (a) in the event of any quarterly instalment of rent being unpaid after the expiration of 14 days from the relevant gale day and (b) in the event of the lessee, being a company, going into liquidation. By an Assignment dated the 25th August, 1970, the demised premises were assigned by Irish Shell and B.P. Ltd. to Hibernian Transport Companies Ltd. (hereinafter called Hibernian Transport) for the residue of the term of years and subject to the covenants and conditions affecting the lessee under the Lease of 1969.

On the 19th November, 1970, the High Court (Kenny J.) appointed Mr. I. W. O'Neill to be provisional liquidator of Hibernian Transport and on the 7th December, 1970, Kenny J. ordered Hibernian Transport to be wound up by the High Court under the provisions of the Companies Act, 1963, and appointed the provisional liquidator to be the official liquidator of Hibernian Transport. At the date of the winding-up order, Acme Glass Co. Ltd. was a creditor of Hibernian Transport for the sum £18.9.6d.

On the 12th July, 1971, Kenny J. made an order (on the application of the official liquidator) giving the official liquidator liberty to sell the leasehold interest of Hibernian Transport in Hibernian House under the Lease of 1969 by public auction, subject to conditions of sale which were to be settled by court counsel and subject to a reserve price which was to be fixed by the Examiner; by the same order the official liquidator was given liberty to pay Associated Properties Ltd., the lessors, the sum of £5,250 being the gale of rent payable on the 1st July, 1971, in accordance with the terms of the Lease of 1969. The Examiner fixed a reserve price of £70,000. The sale of Hibernian House was advertised and the premises were offered for sale at a public auction held on the 30th September, 1971, but no bids were received for Hibernian House.

On the 6th October, 1971, the general manager of United Dominions Trust (Ir.) Ltd. (hereinafter called United Dominions) wrote to the auctioneers as follows:—"I would confirm our telephone conversation of to-day's date with your Mr. White and formally put forward our offer of £65,000 for the leasehold interest in Hibernian House, 13/16 Fleet Street. It being understood that this sum is to include the fittings as per your catalogue and is subject to contract. We would require a written acceptance from you not later than 6 p.m. on Friday 8th October, 1971."On the 7th October the auctioneers wrote to United Dominions and acknowledged the letter of the 6th October.

On the 7th October counsel for the official liquidator informed Kenny J. in chambers of the offer of United Dominions and stated that that company was not prepared to sign a contract to purchase Hibernian House in the customary form "subject to the approval of the Court";counsel informed the judge that the official liquidator recommended the acceptance of the offer of United Dominions. Kenny J. told counsel that he could inform the official liquidator and United Dominions that the judge would approve a contract for sale at £65,000. Later on the 7th October, the auctioneers wrote to the general manager of United Dominions and informed him that they were authorised to accept the offer of United Dominions and that the solicitor of the official liquidator was forwarding a draft contract for approval; on the same day the solicitor for the official liquidator wrote to the solicitor for United Dominions enclosing a contract for sale in duplicate and stating that Kenny J. had approved of the sale of Hibernian House to United Dominions for £65,000.

On the 11th October Kenny J., who was attending to his ordinary motion list in the High Court, was asked by a solicitor acting for the Irish Permanent Building Society whether he might be permitted to submit a bid for Hibernian House on behalf of Irish Permanent. The subsequent events are described at p. 199, post. On the same day Kenny J. ordered that "the offer dated the 11th day of October, 1971, of United Dominions Trust (Ireland) Limited of Hume House Pembroke Road Dublin to purchase for the sum of £65,000 the premises in said Particulars mentioned be and the same is hereby accepted subject to the terms of the said Conditions of Sale so far as now applicable to the said offer and accordingly the Court doth declare the said United Dominions Trust (Ireland) Limited to be the purchasers of all that and those the premises known as Hibernian House (formerly Adair House later Shell and B.P. House) situate at numbers 13 to 16 Fleet Street Dublin . . ."

The "offer dated the 11th day of October, 1971, of United Dominions Trust (Ireland) Limited", mentioned in the order of Kenny J., was a written memorandum of an agreement between the official liquidator of the one part and United Dominions of the other part. This document stated that the official liquidator agreed to sell, and that United Dominions agreed to buy, Hibernian House for the sum of £65,000; it stated that the sale should be governed by the...