Re Mcinerney Homes Ltd and Others

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Clarke
Judgment Date21 January 2011
Neutral Citation[2011] IEHC 25
Date21 January 2011
McInerney Homes Ltd & Ors, In Re
IN THE MATTER OF McINERNEY HOMES LIMITED IN EXAMINATION (UNDER THE COMPANIES (AMENDMENT) ACT 1990 )
AND,
IN THE MATTER OF McINERNEY HOLDINGS PUBLIC LIMITED COMPANY IN EXAMINATION (UNDER THE COMPANIES (AMENDMENT) ACT 1990 )
AND,
IN THE MATTER OF McINERNEY CONSTRUCTION (HOLDINGS) LIMITED IN EXAMINATION (UNDER THE COMPANIES (AMENDMENT) ACT 1990 )
AND,
IN THE MATTER OF McINERNEY CONTRACTING LIMITED IN EXAMINATION (UNDER THE COMPANIES (AMENDMENT) ACT 1990 )

AND

IN THE MATTER OF McINERNEY CONTRACTING DUBLIN LIMITED IN EXAMINATION (UNDER THE COMPANIES (AMENDMENT) ACT 1990 )
AND,
IN THE MATTER OF THE COMPANIES ACTS 1963 TO 2009

[2011] IEHC 25

[No. 475 COS/2010]

THE HIGH COURT

COMPANY LAW

Examinership

Scheme of arrangement - Jurisdiction - Revisit principal decision before final orders made - Further materials or evidence available - Significant materiality of new evidence - Banking syndicate participating in NAMA scheme - Likelihood of transfer company loans to NAMA - Long term receivership model unlikely to proceed - Balance of justice - Whether proceedings still alive - Whether strong reasons - Whether new evidence likely to have significant effect on court's considerations - Whether new evidence could reasonably have been put before court at initial hearing - Lynagh v Mackin [1970] IR 180; Murphy v Minister for Defence [1991] 2 IR 161; Paulin v Paulin [2009] EWCA Civ 221, [2010] 1 WLR 1057; Cie Noga D'Importation et D'Exploration SA v Abacha [2001] 2 All ER 513; Millensted v Grosvenor House (Park Lane) Ltd [1937] 1 All ER 736; In re Vantive Holdings Ltd [2009] IESC 69, [2010] 2 IR 118; Henderson v Henderson (1843) 3 Hare 100; Dellway Investment Ltd v NAMA [2010] IEHC 364, (Unrep, HC, 8/11/2010) and A(A) v Medical Council [2003] 4 IR 302 considered - Companies (Amendment) Act 1990 (No 27) - Matter reopened (2010/475COS - Clarke J - 21/1/2011) [2011] IEHC 25

In re McInerney Homes Ltd

Facts This application concerned an earlier judgment delivered by this Court on 10/01/2011 in which the Court determined that it was not appropriate to confirm the scheme of arrangement proposed by the examiner because the scheme was unfairly prejudicial to the Banking Syndicate. The Banking Syndicate had made out a credible case for the proposition that a form of long term receivership, which it proposed, would have a realistic prospect of securing an income stream over 10 or 11 years in the sum of approximately €75,000,000. The applicant company herein invited the Court to revisit that judgement for the reason that it was now highly probable that the interests of two members of the Banking Syndicate, in the loans which the Banking Syndicate advanced to the applicant and associated companies will be transferred to the National Asset Management Agency. The applicant submitted that the material and evidence upon which it based that contention only became known to it in the days immediately after the Principal Judgment was delivered, and accordingly it was unable to make the argument which it now seeks to make during the previous hearing. The Principal Judgment was delivered on the 10 January 2011 but the final order had not been drawn up by the time the applicant informed the court that it proposed making this application to revisit the order. The application herein was based on two emails from the legal services of one of the banks involved in the syndicate and in particular the statement in one of those emails that it was understood the 'transfer of the McInerney loans to NAMA would be taking place very shortly'.

Held by Clarke J. in allowing the matter to be reopened: That in order for the court to exercise its jurisdiction to revisit a question after the delivery of either an oral or written judgment, it was necessary that there be "strong reasons" for so doing. Furthermore, the new materials must be such that same would probably have an important influence on the result of the case, even if not decisive, and be credible. In addition, such new evidence will not ordinarily be permitted to be relied on if the relevant evidence could, with reasonable diligence, have been put before the court at the trial. On the basis of the evidence currently available, there was a real possibility that a conclusion that the McInerney loans of two of the banks were highly likely to go into NAMA would be a fact of significant materiality in consideration of whether the scheme was unfairly prejudicial to the Banking Syndicate. The emails produced provided evidence that the loans were likely to go into NAMA and both the applicant and the Banking Syndicate bore responsibility for failing to appreciate and advise the court of the possibility of the loans going into NAMA. The balance of justice required that this matter be reopened and the issue to be addressed by the court was the likelihood of the long term receivership model actually being put into place having regard to whatever likelihood there might, in turn, be that the Bank of Ireland and Anglo Irish aspect of the Banking Syndicate loans are acquired by NAMA.

Reporter: L.O'S.

LYNAGH v MACKIN 1970 IR 180

MURPHY v MIN FOR DEFENCE & ORS 1991 2 IR 161 1991/4/981

PAULIN v PAULIN & ANOR 2010 1 WLR 1057 2009 2 FLR 354 2009 2 FCR 477

COMPAGNIE NOGA D'IMPORTATION ET D'EXPORTATION SA v ABACHA & ANOR (NO 2) 2001 3 AER 513 2001 CP REP 93

ROBINSON v FERNSBY & SCOTT-KILVERT 2004 WTLR 257 2003 EWCA CIV 1820

AUSTRALIAN DIRECT STEAM NAVIGATION, IN RE; MILLER'S CASE 1876 3 CH D 661

MILLENSTED v GROSVENOR HOUSE (PARK LANE) LTD 1937 1 KB 717

VANTIVE HOLDINGS & ORS, IN RE UNREP SUPREME 14.10.2009 2009/57/14518 2009 IESC 69

HENDERSON v HENDERSON 1843 3 HARE 100 67 ER 313 1843-60 AER 378

VANTIVE HOLDINGS & ORS, IN RE UNREP COOKE 24.8.2009 2009/56/14382 2009 IEHC 408

DELLWAY INVESTMENT LTD & ORS v NATIONAL ASSET MANAGEMENT AGENCY (NAMA) & ORS UNREP HIGH 1.11.2010 2010 IEHC 364

A (A) v MEDICAL COUNCIL 2003 4 IR 302 2004 1 ILRM 372 2003/1/49

1. Introduction
2

2 1.1 I am now faced with a novel and difficult question in these examinership proceedings. For the reasons set out in a judgment delivered by me on the 10 th of this month I decided that it was not appropriate to confirm the scheme of arrangement proposed by the examiner. Parties and terms are used in this judgment in the same way in which they were in the judgment to which I have referred ("the Principal Judgment").

3

3 1.2 As is clear from the Principal Judgment, I came to the conclusion that the scheme of arrangement as proposed was unfairly prejudicial to the Banking Syndicate who had opposed the confirmation of that scheme. My basis for coming to that view was that the Banking Syndicate had made out a credible case for the proposition that a form of long term receivership, which the Banking Syndicate proposed, would have a realistic prospect of securing an income stream over 10 or 11 years in the sum of approximately €75,000,000. I was satisfied that a credible basis had also been made out for the proposition that that income stream had a present value of the order of €50,000,000 or, perhaps, a little less. That assessment, when compared with the €25,000,000 on offer under the scheme of arrangement, led me to come to the view that the Banking Syndicate would be unfairly prejudiced by a confirmation of the scheme as proposed.

4

4 1.3 McInerney now invites me to revisit that judgment in circumstances which it will be necessary to explore in some detail later in the course of this judgment. However, at the core of the case which McInerney now makes is an assertion that it is highly probable that the interest of two members of the Banking Syndicate, that is Bank of Ireland ("B of I") and Anglo Irish Bank ("Anglo Irish"), in the loans which the Banking Syndicate has advanced to McInerney and associated companies, will be transferred to the National Asset Management Agency ("NAMA"). On that basis it is said that it is now clear (or at least is highly likely) that the long term receivership model put forward by the Banking Syndicate will not, in fact, be put in place. In those circumstances it is argued that the court should revisit the Principal Judgment. It is also of some importance to note that it is said on behalf of McInerney that the materials and evidence on which it bases its contention only became known to it in the days immediately after the Principal Judgment was delivered such that it was, it is said, unable to make the argument which it now seeks to put forward during the hearing which led to the Principal Judgment.

5

5 1.4 It is first appropriate to set out briefly the procedural history since the Principal Judgment was delivered.

2. Procedural History
2

2 2.1 The Principal Judgment was delivered on the 10 th January. Counsel on all sides sought a not unreasonable opportunity to read the written judgment, to consider its contents, and to give advice and take instructions on any matters which might arise.

3

3 2.2 While it was clear that the principal order which the court would make was an order refusing to confirm the scheme of arrangement there were, of course, other matters that might need to be dealt with, not least the possibility that McInerney might seek to appeal and might, in that context, seek some continuation of the protection of the court to enable it to pursue such an appeal. Against that background I indicated that I would not make any formal order on the day in question, would adjourn the matter until the following Friday ( i.e. the 14 th January), would make a formal order refusing to confirm the scheme of arrangement on that day and would hear counsel as to any further orders or measures which it might be argued ought be put in place.

4

4 2.3 However, when the matter came back before the court on the 14 th, counsel for McInerney...

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28 cases
  • K. v K
    • Ireland
    • High Court
    • 23 November 2018
    ...to enable the parties to consider the judgment. 6 While it was indicated by Clarke J. (as he then was) in Re: McInerney Homes Ltd [2011] IEHC 25 that it is necessary that there be “strong reasons” before a court should exercise its jurisdiction to revisit a question after the delivery of a......
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