O'Reilly (Official Liquidator) v O'Connor

• Jurisdiction: Ireland
• Judge: Carroll J.
• Judgment Date: 20 July 2005
• Neutral Citation: [2005] IEHC 255
• Court: High Court
• Date: 20 July 2005
• Docket Number: No 110 COS/2000

[2005] IEHC 255

THE HIGH COURT

DUBLIN

No 110 COS/2000

O'REILLY (OFFICIAL LIQUIDATOR) v O'CONNOR

IN THE MATTER OF INDUSTRIAL SOUND AND LIGHTING LIMITED

(IN LIQUIDATION)

AND IN THE MATTER OF THE COMPANIES ACT, 1963 - 1990

BETWEEN/

PATRICK DERMOTT O'REILLY (OFFICIAL LIQUIDATOR)

APPLICANT

AND

JOHN O'CONNOR

RESPONDENT

RSC O.41 r1

RSC O.41 r15

RSC O.74 r126

COMPANIES ACT 1963 S231(A)

CONTRACT:

Enforcement

Liberty to enter final judgment - Respondent agreeing to pay percentage of liabilities of his insolvent company by instalment - Whether agreement supported by consideration - Whether unconscionable bargain - Whether agreement effective having been approved by court in absence of respondent - Companies Act 1963 (No 33), s 231(a); Rules of the Superior Courts 1986 (SI 15/1986), O 74, r 126 and O 41, rr 1 and 15 - Judgment entered (2000/110COS - Carroll J - 20/7/2005) [2005] IEHC 225In re Industrial Sound and Lighting Ltd (in liquidation);

O'Reilly v O'Connor

Facts: The liquidator sought to obtain judgment against the respondent on foot of two agreements. Under the two agreements the respondent agreed inter alia to pay 65% of the total debts of the company as certified by the examiner’s office and in default of payment to judgment being entered against him personally. None of the monies were paid. The respondent submitted inter alia that it was an unconscionable bargain and there was no consideration for the agreement.

Held by Carroll J. that judgment should be given against the respondent.

Reporter: R.W.

Note of Judgment delivered by

Carroll J.

delivered on 20th July, 2005

1 In this notice of motion, the official liquidator, Mr. O'Reilly, seeks to obtain judgment against the respondent, Mr. O'Connor, on foot of two agreements dated 9^th May, 2001 and 10^th October, 2001.

2 These agreements were brought before the court, at which I was sitting, on 15^th October, 2001. The settlements were approved. The respondent did not appear, but the order stated that affidavits of service were read. There was a preliminary objection to my hearing this case as I had ruled the order, though I have no recollection of making the order, but no coherent reason was given and in particular, bias was not alleged.

3 As counsel for the official liquidator objected to the application and there was a long history of adjournments, also an adjournment had been refused the previous Friday and the Monday, I decided to hear the case.

4 The official liquidator was appointed on 10^th July, 2000 on the petition of the Revenue Commissioners. When he went to Abbeyfeale where the company was based, he was told by Mr. O'Connor that the premises which had been leased had been surrendered and he had taken the assets of the company and stored them in his attic. The business of the company was providing sound and light for discos.

5 Under the two agreements, the respondent agreed to pay 65% of the total debts of the company as certified by the examiner's office in instalments of £2, 000 every month, commencing 30^th December, 2001. None of these instalments were paid. He also agreed to buy the assets of the company for £8,523.45. The defendant paid a portion of this, but three cheques for the balance were dishonoured.

6 In the agreement, in default of payment, Mr. O'Connor consented to judgment being entered against him personally for the total remaining liabilities not yet discharged by him. Both agreements provided for liberty to apply.

7 This is a notice of motion seeking to enter judgment for €210,136.30 and was issued returnable for 29^th November, 2003. The circumstances of...