Re Redbreast Preserving Company

• Jurisdiction: Ireland
• Judgment Date: 01 January 1958
• Date: 01 January 1958
• Docket Number: [1954 No. 883 P.]
• Court: High Court

[1954 No. 883 P.]

In re Red Breast Preserving Company (Ireland) Ltd.

In the Matter of The Companies Consolidation Act,1908, and in the Matter of RED BREAST PRESERVING COMPANY (IRELAND) LIMITED

Company - Compulsory winding up - Priority of payment of official liquidator's remuneration - Priority of payment of costs to solicitor acting on behalf of official liquidator - Power of Court to order payments on account of such remuneration and costs during the currency of a compulsory winding-up - Companies (Consolidation) Act, 1908 (8 Edw. 7, c. 69), s. 209.

Notice of Motion.

This matter came before the Court on a motion brought on behalf of the official liquidator seeking certain orders and a declaration, the nature whereof is summarised in the headnote hereto and is set out at the commencement of the judgment of Budd J., post.

On an application brought on behalf of the official liquidator, in the course of the compulsory winding-up of the Red Breast Preserving Company (Ireland) Limited, for the payment to him and the solicitor acting on his behalf respectively, of sums on account of remuneration due and costs incurred to date, it, was

Held by Budd J.:—

1, That the official liquidator's remuneration, costs, and expenses form part of the costs and expenses specified in s. 209, sub-s. 3, of The Companies (Consolidation) Act, 1908, and are payable in priority to the "debts"specified in that section;

2, That the practice, heretofore followed, of giving the debts set forth in s. 209 of The Companies (Consolidation) Act, 1908, preference of payment to the remuneration, costs, and expenses of the official liquidator was incorrect, and unsupported by the provisions of the Act or the decision in McIntosh & Co., Ltd. v. Thompson & Co. Ltd.[1932] I. R. 45, and [1934] I. R. 332;

3, That the Court, in the exercise of its discretion, during the currency of a compulsory winding-up may direct the payment to the official liquidator of a sum on account of remuneration due and expenses incurred;

4, That the Court, in the exercise of its discretion, during the currency of a compulsory winding-up may direct a payment to the solicitor, acting for the official liquidator, on account, costs incurred in the matter.

Budd J. :—

This is a motion brought on behalf of the official liquidator in which he seeks the following reliefs and orders:—

1, that it be referred to the Taxing Master to tax the costs of the petitioner of the petition for the winding-up of the Company named in the title hereof.

2, that the said costs when taxed and ascertained be paid to the petitioner out of the funds in the hands of the official liquidator.

3, that it be referred to the Taxing Master to tax the costs of the official liquidator in this matter up to 31st December, 1956.

4. that there be paid to the solicitor for the official liquidator in this matter a sum of £1,500 on account of the costs of the official liquidator in the matter.

5, that there be paid out of the funds in the hands of the official liquidator the sum of £1,500 on account of the remuneration of the official liquidator in the matter.

6, that it may be declared that the official liquidator is entitled to be paid all his costs in this matter (including the costs of realisation) and his remuneration in priority to and before the distribution of any of the assets or property of the Company amongst the creditors of the Company, including particularly in priority to all preferential payments under s. 209 of the Companies Act, 1908, and all other debts having priority to the ordinary creditors.

7, if necessary, an order that it may be declared that the costs and expenses of the examinations in this matter be declared to be part of the costs of realisation of the assets of the Company.

Or for such other order as to the Court may seem meet.

This matter has been in progress for about three years. It has involved the official liquidator and his solicitor in a considerable amount of arduous work, and both have incurred expenses of substantial amounts, involving actual outlay on various items.

The order for winding-up was made on 25th August, 1954, and from the facts before me it is quite clear that the matter will not be terminated for a long time. I am informed that further litigation is pending, which is of a substantial nature, and will result in considerable delay in the winding-up of the Company.

I refer to these facts for the purpose of showing the difficulty which professional persons undertaking the responsibilities and duties of...